Protecting Private Property

The gaping hole at the policy heart of the Ipperwash inquiry is commissioner Sidney Linden's refusal to explain how an ordinary Ontarian protects his or her private land against aboriginal seizure.

The province failed to do it for Henco Industries at Caledonia. And for a proposed seniors' complex in Hagersville. Or a quarry in Deseronto.

Just 12 per cent of Ontario's land is privately owned, yet an increasing number of aboriginal protests are aimed at seizing such land. Much of the Haldimand Tract, of which the Caledonia and Hagersville lands are part, is privately owned.

Even when the immediate aboriginal claim is to governments-owned land, as at Ipperwash, the spillover effect onto adjacent private landowners can be enormously damaging.

It is true that Linden reiterates on one page of his 386-page policy analysis section of the Ipperwash report that, "Settling claims without damaging the interests of non-aboriginal people is a long-standing principle of the land claims policy in Ontario.

"An important part of this policy is that expropriation of private property as a means of settling claims is ruled out."

Ownership of private property in this context includes access to the lands, and lease holding on Crown lands.

There is a loophole, of course. If a "willing seller/willing buyer" agreement can be reached with the landowner, the land can be transferred to aboriginal ownership through the mechanism of provincial or federal ownership.

That's supposedly what happened in Caledonia when Henco sold the Douglas Creek Estates to the province.

But that's a charade. Henco's title was meaningless, and Linden's words merely ritual obeisance, since the usual remedies of the law of trespass or injunctive relief were unavailable to the company.

The Ontario Provincial Police, the provincial government, and Linden's report make quite clear that force is not an option in aboriginal land claim disputes.

It is all about "peacekeeping," about consultation, negotiation, understanding, restraint, respect, and son on. The police are "neutral."

As Linden said, the "avoidance of violence" is the aim.

Premier Dalton McGuinty, quoted by Linden, put it another way: "We are determined to resolve this in a way that results … in no incident and no compromise in public safety."

Decoded, what he is really saying is that the government will do anything necessary to avoid a repeat of Ipperwash; that is, the killing of an aboriginal who is breaking the law in pursuit of, to use Linden's phrase, "aboriginal and treaty rights."

In the process, the theft of private land, major economic dislocation, and even violence committed by radical aboriginals will be ignored or tolerated. "No incident" acquired strange meanings.

McGuinty even seems to have acknowledged this when his government paid out millions of tax dollars to buy the Henco property and give Caledonia-area businesses, and some homeowners, financial assistance.

Injunctions have also been rendered meaningless.

The Ontario Court of Appeal, in staying a Caledonia injunction by a lower court judge who wondered what happened to contempt of court and the rule of law, said the concept of the rule of law is a "highly textured" thing.

The higher court agreed that the "rule of law requires a justice system that can ensure orders of the court are enforced and the process of the court is respected." Yet it did not then conclude the obvious: that both aspects are missing in Caledonia.

Rather, it skirted the issue with blather about "other dimensions" having a "significant role" in its decision, while ignoring that no one was willing to enforce the law in Caledonia, and that the aboriginal occupiers had zero respect for what they considered foreign, that is Canadian, law.

Linden, in fact, wants to further hamstring the injunctive remedy.

"I further believe that the provincial government should be present whenever private landowners seek injunctions and aboriginal and treaty rights may be at issue. In these circumstances, the provincial government should inform the court that aboriginal and treaty rights are at stake, that the province has a duty to consult aboriginal peoples, and that negotiations are the preferred response to aboriginal rights disputes. The provincial government and/or the OPP should also advise the court of any public order implications and the potential risks of an injunction."

As mentioned above, "aboriginal and treaty rights" is Lindenese for aboriginal land claim occupations, and his urging of intervention on behalf of the occupiers raises an obvious question: If the law of trespass is to be ignored, and injunctive relief to be denied, how does a private landowner protect his property?

With the Supreme Court of Canada in 1997's Delgamuukw decision reviving, long-dead aboriginal title, and with other court decisions since then force-feeding the ongoing expansion of aboriginal entitlements (Taku River, 2004; Mikisew Cree First Nations, 2005, etc.), it has become increasingly difficult to know where and how the land grabs will end.

Linden certainly doesn’t say.

But someone, sometime, is going to have to do so.