By JOHN MINER, FREE PRESS REPORTER
WALPOLE ISLAND -- At the First Nation heritage centre here, director David White checks his schedule.
He is free until a 3 p.m. meeting with a company president from Detroit.
The Detroit executive is planning a project in Ontario and wants to discuss it with the Walpole Island First Nation. And the next day, another company considering establishing an international school in the area is coming for a meeting.
Two-hundred kilometres east, at the Six Nations Reserve -- where the native occupation of a partially completed housing development at Caledonia has grabbed national attention -- business leaders are reportedly lining up to discuss potential projects with the Six Nations.
And about 250 kilometres north, on the edge of the Bruce Peninsula, Chief Randall Kahgee of the Saugeen First Nation is also experiencing the trend: Largely ignored for hundreds of years, native land claims and their treaty rights are changing the landscape of doing business.
"More and more companies are realizing it makes good business sense to consult," Kahgee says. "If we are not satisfied interests are protected and safeguarded, we are going to be a little worse for wear. If you don't involve the First Nation in the initial planning stage, problems will fester," says Kahgee, who as a lawyer has negotiated land claims issues involving mining companies.
The business interest in including First Nations as part of the planning equation comes as the number of land claims across the country has grown to more than 1,300, covering everything from the land under the Great Lakes to Parliament Hill.
Knowing what might be subject to a claim and what is in the clear isn't easy for businesses or individuals.
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Native rights in Southern Ontario go back to treaties with the British, who made promises and signed deals with the First Nations in the 1700 and 1800s, their military allies at the time against the Americans.
But deciding what those deals mean today isn't simply a matter of dusting off the original documents, says White, who researches land claims for the Walpole First Nation and other native groups.
What also legally matters is what was said in negotiations. And sometimes what was promised and what was written down in English -- something the chiefs at the time couldn't read -- could be entirely different.
"Copies of speeches at the time, correspondence that went back and forth between Indian agents and the negotiators, the military conditions at the time, services rendered, promises made, all those kinds of things are taken into consideration," White says.
While some people are exasperated with having to deal with disputes over deals struck hundreds of years ago, White and other legal experts say they don't blame the natives.
In part, the backlog can be blamed on a Canadian law passed in 1927 to deal with land claims.
That law, which remained in force until the 1951, made it illegal for natives to hire a lawyer to take their claims to court. A lawyer who took on such a case could be disbarred.
Then there was the tight control over the band exercised by the federal Indian agent. Federal officials regularly refused to allow bands to hire lawyers.
"We were under the thumb of the agent. In that time, the Indian agent was police, judge, jury and executioner," White says.
University of Western Ontario law Prof. Michael Coyle, in a report prepared for the Ipperwash inquiry, pointed to another roadblock the government used to delay claims.
First Nations were denied access to documents relating to their treaties, land transactions and trust funds.
In the 1830s, the Mississaugas of New Credit, concerned with encroachments on their land near Toronto, asked for a formal confirmation of the land holdings in order to enforce their rights. They were refused.
Their chief, a Methodist minister, petitioned the Queen, but his request was denied on the basis the Mississaugas were not capable of handling such responsibility.
Coyle wrote that even as recently as 1957 when the Musqueam First Nation surrendered their land in downtown Vancouver so it could be leased to a golf club, they didn't learn from the federal government the terms of the lease until 12 years later.
Finally, in another twist of the Indian Act, natives until the 1950s who became lawyers or other educated professionals would be declared a full Canadian citizen, taking away their Indian status and rights to live on a reservation.
"They were a lost resource to the First Nation," White says.
Even now, First Nations are not happy with the land claims system in Canada that requires natives to file their claims with the government, leaving it to the government to decide if there's a valid claim against it.
White likens it to someone with a dispute over land having to ask their neighbour if it's their land or if it belongs to their neighbour.
"We are playing ball in their court and these are their rules," he says.
In most claims, First Nations have stayed away from seeking land that is privately held, instead going after Crown land such as provincial parks or road right of ways.
White says that has been a political decision on the part of First Nations leaders.
In the case of Walpole's claim to a nearby township, the First Nation sent a letter to all residents assuring them they weren't after their properties in negotiations.
But the letter also contained a subtle warning. If negotiations with the federal government failed and the First Nation had to take it to court, everything could be on the table.
Both the federal and Ontario governments have put it on the record they would never consider negotiating away privately held land.
Coyle says First Nations have wanted to maintain good relations with the neighbours and for that reason have avoided claiming privately held land.
Instead, they've looked for equivalent lands that might be vacant.
And if they did take the issue to court, it would be an uphill battle, he says.
"There would be legal challenges for a First Nation to try to argue that its rights supercede those of an innocent set of purchasers."
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Back at Walpole, as he prepares for his meeting with that Detroit businessperson, White has an answer for non-natives who want a guarantee they won't themselves become entangled in a native land claim, whether through existing real estate holdings, a future land purchase or a business transaction.
"If you want 100-per-cent certainty, get the government to settle the claims."