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Tuesday, March 30, 2010

NatPost Flanagan: Creating 600+10+3 Nations Warring in the Bosom of Single State

Robert Ede
Tue, Mar 30, 2010 at 12:38 PM
To: tflanaga@ucalgary.ca, "Letters (National Post)" , "Corcoran, Terry (National Post)" , Rt Hon Stephen Harper

Dear Ed & Prof Flanagan

An excerpt from the Flanagan/Alcantra&Le Dressay's book "Beyond the Indian Act:Restoring Aboriginal Rights" was published on March 27 in the NatPost under the headline "Homes of their own" .

The first half of the excerpt contains a wonderful description of the hidden/mysterious/ignored truth about the Torrens System of "Freehold" or "Fee Simple" land tenure in Canada vis a vis allodial tenure - although allodium's attributes were left unmentioned.
-Q1 to professor - 7 of 10 provinces have this system - I knew about PQ. who else?
-Q2 to professor ?indefeasible? property rights? What about: escheat?; sub-surface rights in Alta?; expropriation/zoning 'holds' with poor/slow/low compensation for greater common-good purposes?; property rights never BNA/Constitutional-ized?

Essentially the excerpt explains that in Canada, while "under all is the land (CREA slogan) ... under all the lands' titles remains the Crown's ultimate interest that, way-back-when was the authority to grant a "bundle of rights of use" to the "tenancy-in-common / joint-tenant" occupant. (ever before wonder why those terms were used? or Vendor/Seller not Owner in realty transactions? ... now you know)

The solution you propose will only create approximately 600 additional Nations warring in the Bosom of a single state.

Surely this madcap politico-economic landscape cannot be your intention unless I completely misunderstand the paragraphs:

"We are proposing that the federal government pass a First Nations Property Ownership Act so that First Nations across Canada can have clear underlying and individual property ownership, should they so choose.

The benefits of a First Nations property ownership would be substantial. In combination with existing federal legislation, it would fill in most of the gaps in the First Nations investment climate and dramatically reduce transaction costs. With a stroke of a pen, First Nations land values could rise to those prevailing in the rest of Canada. It would recognize underlying First Nations title, and thus formally bring First Nations governments into the federation."

The idea of recognizing the code-words "First Nations title" on Indian' Act Land Reserves is open to ridicule by anyone who has studied the situation (never mind allowing for the excerpt's muddle of options -freehold/leasehold/collective- to be decided autochthonous individual band/nation council by autochthonous nation/band council)
Would this title supplant, replace or be lain atop or beneath (NB beneath is superior, Torrens-wise) the 1763 Royal Proclamation's "reserved for their hunting ground" claims and protections?

For further certainty of my understanding of your idea -would this title be equal, superior or inferior to the Torren's fee-simple/freehold estate? equal, superior or inferior to the root title of the Crown?

'Tis a pity .... only in Canada, you say ... that no regular person really knows the "law of their land-tenure" and university professors and/or political activists can take advantage of that nescience to advance aspects of an agenda that would undermine the idea of 'a province' and 'the crown' and also it's a pity that a newspaper editor would give 3 full-page columns (including perky picture) to furthering this sounds-good-at-first-blush, but-actually-no-good proposition. Unless of course Mr Harper's friend Prof. Flanagan is a Firewaller too and none of the treaties he's talking about are in the "District of Athabaska" (local slogan "let the southern Alta bums freeze in the dark")

Robert Ede,

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