TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF ,

Robert Sroka*

INTRODUCTION

In addition to being a primary sphere in which law has strong potential to positively impact socio-economic development, land rights as they pertain to Indigenous peoples are a frequent flashpoint of conflict throughout the developing world. Yet many similar conflicts exist in highly developed countries that also happen to be former colonies. While comparable issues have been documented in each of the United States,1 Australia,2 and New Zealand,3 this paper focuses on . In particular, this paper evaluates the formation of the law on Aboriginal title by the

* Robert Sroka is a PhD Candidate and LLM Candidate at the University of Michigan. He holds a JD and BA (Hon.) from the University of British Columbia, a previous LLM from the University of , and is a lawyer called in British Columbia and Alberta. His law practice centers on local government and planning law, while his academic research focuses on land use and financing in projects related to sports venues and real estate development. Robert’s work has been published in planning and law journals in the United States, Canada, and United Kingdom. 1 Naomi Schaefer Riley, One Way to Help Native Americans: Property Rights, ATLANTIC (July 30, 2016), https://www.theatlantic.com/politics/archive/2016/07/native-americans-property- rights/492941/ (“The economic devastation in American Indian communities is not simply a result of their history as victims of forced assimilation, war, and mass murder; it’s a result of the federal government’s current policies, and particularly its restrictions on Natives’ property rights.”). 2 Dr. Heidi Norman, Opinion, Land Rights and Native Title Aren’t the Same— and The Two Systems Could Spark Indigenous Conflict, ABC NEWS (Nov. 17, 2018), https://www.abc.net.au/news/2018-11-16/heidi-norman-ticking-timebomb- for-indigenous-conflict-in-nsw/10376778. 3 AHOHIVA LEVI & SPIKE BOYDELL, THE ROLES AND RESPONSIBILITIES OF ABSENTEE LAND OWNERS IN THE PACIFIC–A NIUE CASE STUDY 1 (2003), https://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/2335/Boydell_ %26_Levi_-_absentee_land_owners.pdf?sequence=1.

255 256 ALBANY GOVERNMENT LAW REVIEW [Vol. 12

Supreme Court of Canada as pertaining to the province of British Columbia (BC), most of which has the unique status of not being governed by settled treaties with Indigenous groups. I argue that the line of Aboriginal title decisions stemming from 1997’s landmark Delgamuukw v. British Columbia,4 has traded short and medium term land rights uncertainty for longer horizon reconciliation through changing bargaining positions and incentives for government and Indigenous parties alike.5 This series of Supreme Court of Canada decisions has had its greatest potential positive impact for BC Indigenous groups with geographic proximity to valuable real estate or natural resources, and no historically settled treaties.6 Certain communities within the Vancouver region have proven especially adept at leveraging the new judicial framework to gain land settlements, and then construct significant real estate developments on these settlement lands.7 This paper evaluates the efforts of two Indigenous groups to create a self-sustainable socio-economic future via real estate development on settlement lands, through two distinct models: the first, a piecemeal and prolonged approach, and the second, an expedient, comprehensive, and final settlement. I find that both models have been effective for the groups discussed, but that the trade-offs can be framed as continued bargaining power and a residual outstanding gain yet to be realized, versus certainty and a higher degree of self- determination. After a brief background on Indigenous peoples in Canada, and the existing statutory and constitutional framework, this paper evaluates the line of case law that has made this structural transformation possible, as well as some of the limits of this

4 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (Can.). 5 See Andrew Kurjata, 20 Years Ago, This Court Case Changed the Way Canadians Understood Indigenous Rights, CBC NEWS (Dec. 11, 2017), https://www.cbc.ca/news/canada/british-columbia/delgamuukw-vs-british- columbia-20-years-rights-titles-1.4440703. 6 See Mike Howell, Part 2: Land Development Big Part of Musqueam’s Economic Future, VANCOUVER COURIER (Sep. 21, 2016), https://www.vancourier.com/truth-transformation/part-2-land-development-big- part-of-musqueam-s-economic-future-1.2348330. 7 See id.; Musqueam Approve Land and Cash Deal Worth up to $250M, CBC NEWS (Mar. 11, 2008), https://www. cbc.ca/news/canada/british- columbia/musqueam-approve-land-and-cash-deal-worth-up-to-250m-1.718335; Join Vancouver Land Deal Valued at $307M, CBC NEWS (Oct. 1, 2014), https://www.cbc.ca/news/canada/ british-columbia/first-nations-join- vancouver-land-deal-valued-at-307m-1.2784366. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 257 transformation with regard to local governments. From here, I focus on an overview and discussion of the two development models, as respectively exemplified by the Musqueam and peoples.

INDIGENOUS PEOPLES IN CANADA

Indigenous peoples account for over four percent of Canada’s thirty-six million population and represent the country’s youngest and fastest growing demographic.8 While Canada is a highly developed and wealthy country by most measures, this prosperity has often not extended to its Indigenous population. A twenty year study applying the United Nations Human Development Index (HDI) methodology to compare Canada’s Indigenous and non- Indigenous populations encompassing the 1981–2001 period detailed significant gaps.9 Although Canada has been near the top of the HDI from its 1993 inception (with a run at the top in the 1990s), the estimated HDI scores for Canada’s Indigenous population were consistent with far less developed countries.10 Indeed, the 4000 page report of the 1996 Royal Commission on Aboriginal Peoples made some 440 recommendations on how to improve the status of Canada’s Indigenous peoples.11 However, structural inequality has persisted. For instance, twenty years after the Royal Commission report, a 2016 study estimated that fifty-one percent of Registered Indian children live in poverty,12 a

8 STATISTICS CAN., ABORIGINAL PEOPLES IN CANADA: FIRST NATIONS PEOPLE, MÉTIS AND INUIT (2011), https:// www12.statcan.gc.ca/nhs-enm/2011/as-sa/99- 011-x/99-011-x2011001-eng.cfm. 9 MARTIN COOKE ET AL., INDIAN & N. AFFAIRS CAN., MEASURING THE WELL- BEING OF ABORIGINAL PEOPLE: AN APPLICATION OF THE UNITED NATIONS HUMAN DEVELOPMENT INDEX TO REGISTERED INDIANS IN CANADA, 1981–2001, at i (2004), http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.552.7809&rep=rep1&ty pe=pdf. 10 Id. at 1. 11 RENÉ DUSSAULT & GEORGES ERASMUS, REPORT OF THE ROYAL COMMISSION ON ABORIGINAL PEOPLES (1996), http://publications.gc.ca/site/eng/search/search.html (search for title in “text” box); VINCENT O’MALLEY, LOOKING FORWARD, LOOKING BACK: CANADA’S ROYAL COMMISSION ON ABORIGINAL PEOPLES 4 (2000), http://historyworks. co.nz/wordpress/wp-content/uploads/2015/10/omalley- lookingforwardlookingback.pdf. 12 DAVID MACDONALD & DANIEL WILSON, CANADIAN CTR. FOR POLICY ALTS., SHAMEFUL NEGLECT: INDIGENOUS CHILD POVERTY IN CANADA 5 (2016), https://www.policyalternatives.ca/sites/default/files/uploads/publications/ National%20Office/2016/05/Indigenous_Child%20_Poverty.pdf. 258 ALBANY GOVERNMENT LAW REVIEW [Vol. 12 number that includes sixty percent of children living on-reserve,13 compared to eighteen percent of Canadian children overall,14 and thirteen percent of non-Indigenous/non-immigrant Canadian children.15 The literature has documented many elements of this inequality. Beyond child poverty,16 relative to the Canadian population as a whole, Indigenous Canadians experience significant negative and interrelated gaps in income,17 healthcare access and outcomes,18 educational attainment,19 access to clean water, food,20 and housing security,21 as well as substantially higher incidences of domestic and sexual violence,22 incarceration,23 suicide,24 substance abuse,25 child maltreatment

13 Id. 14 Id. at 6. 15 Id. at 5. 16 Id. at 5–6. 17 See Paul S. Maxim et al., Dispersion and Polarization of Income Among Aboriginal and NonAboriginal Canadians, 38 CANADIAN REV. SOC. 465, 474 (2001). 18 See Naomi Adelson, The Embodiment of Inequity: Health Disparities in Aboriginal Canada, 96 CANADIAN J. PUB. HEALTH S45, S45 (2005). 19 See MICHAEL MENDELSON, CALEDON INST. OF SOC. POLICY, ABORIGINAL PEOPLES AND POSTSECONDARY EDUCATION IN CANADA 10 (2006), https://maytree.com/wp-content/uploads/595ENG-1.pdf; see also BLAIR STONECHILD, THE NEW BUFFALO: THE STRUGGLE FOR ABORIGINAL POST-SECONDARY EDUCATION IN CANADA 1 (2006) (“Although government programs designed to attract Aboriginal students to universities have resulted in increased participation rates, obstacles remain to making higher education culturally relevant and equitable.”). 20 See Noreen D. Willows et al., Prevalence and Sociodemographic Risk Factors Related to Household Food Security in Aboriginal Peoples in Canada, 12 PUB. HEALTH NUTRITION 1150, 1150 (2009); see also Elaine M. Power, Conceptualizing Food Security for Aboriginal People in Canada, CANADIAN J. PUB. HEALTH 95, 95– 97 (2008). 21 See Ryan Walker, Aboriginal Self-Determination and Social Housing in Urban Canada: A Story of Convergence and Divergence, 45 URBAN STUD. 185, 185– 86 (2008). 22 See Douglas A. Brownridge, Understanding the Elevated Risk of Partner Violence Against Aboriginal Women: A Comparison of Two Nationally Representative Surveys of Canada, 23 J. FAM. VIOLENCE 353, 355 (2008). 23 See Samuel Perreault, The Incarceration of Aboriginal People in Adult Correctional Services, 29 JURISTAT, no. 3, (Statistics Can., Ottawa, Ont.), July 2009, at 5, https://www150.statcan.gc.ca/n1/pub/85-002-x/2009003/article/ 10903- eng.pdf. 24 See Laurence J. Kirmayer, Suicide Among Canadian Aboriginal Peoples, 31 TRANSCULTURAL PSYCHIATRIC RES. REV. 3, 3 (1994). 25 See Kahawi Jacobs & Kathryn Gill, Substance Abuse in an Urban Aboriginal Population: Social, Legal and Psychological Consequences, 1 J. ETHNICITY IN SUBSTANCE ABUSE 7, 7 (2002) (Eng.); see also Harriet L. MacMillan et al., Aboriginal Health, 155 CANADIAN MED. ASSOC. J. 1569, 1576 (1996). 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 259 investigations,26 and homelessness.27 While the worst situations are typically found on-reserve, off-reserve Indigenous Canadians in urban centers still experience substantially worse socio- economic outcomes than Canadians in general.28 A number of structural causes for this substantial and sustained inequality and poverty have been cited. These include unemployment and job market discrimination,29 lack of education and training,30 isolated geographical locations away from economic opportunity,31 communal culture,32 the legacy of residential schools,33 the dearth of a major land and resource base,34 and the absence of self-determination.35 This paper focuses on addressing relatively narrow aspects of the latter two causes. In Canada, the Constitution Act, 1867 delegates “Indians, and Lands reserved for the Indians” to the federal sphere of responsibility.36 Much of the current condition can be viewed as a legacy of the 1876 Indian Act,37 the primary legislative instrument

26 See Cindy Blackstock et al., Child Maltreatment Investigations Among Aboriginal and Non-Aboriginal Families in Canada, 10 VIOLENCE AGAINST WOMEN 901, 902 (2004). 27 See Andrew Leach, The Roots of Aboriginal Homelessness in Canada, 23 PARITY 12, 12 (2010) (Austl.); see also Suzanne Lenon, Living on the Edge: Women, Poverty and Homelessness in Canada, 20 CANADIAN WOMAN STUD. 123, 125 (2000) (racism against Canadian aboriginals matters in the housing market). 28 CALVIN HANSELMANN, CAN.W. FOUND., URBAN ABORIGINAL PEOPLE IN WESTERN CANADA: REALITIES AND POLICIES 6 (2001), https://cwf.ca/wp- content/uploads/2015/12/CWF_UrbanAboriginalPeopleWestern Canada_Report_SEP2001.pdf. 29 Joan Kendall, Circles of Disadvantage: Aboriginal Poverty and Underdevelopment in Canada, 31 AM. REV. CANADIAN STUD. 43, 45 (2001). 30 Id. 31 Id. at 45–46. 32 Id. at 46–47. 33 See Rosemary Barnes et al., Residential Schools: Impact on Aboriginal Students’ Academic and Cognitive Development, 21 CANADIAN J. SCH. PSYCHOL. 18, 29 (2006) (Can.). 34 Kendall, supra note 19, at 47. 35 Id. at 48. 36 Constitution Act,1867, 30 & 31 Vict., c 3, § 91(24) (U.K.). 37 See also Gloria Galloway, Chiefs Reflect on Apartheid and First Nations as Atleo Visits Mandela Memorial, GLOBE & MAIL (Dec. 11, 2013), https://www.theglobeandmail.com/news/politics/chiefs-reflect-on-apartheid-and- first-nations-as-atleo-visits-mandela-memorial/article15902124/ (describing generally how the legacy of the Canadian Indian Act has carried on to help formulate another oppressive system: apartheid in South Africa); Brett Popplewell, A History of Missteps, TORONTO STAR (Oct. 30, 2010), https://www.thestar.com/news/investigations /2010/10/30/a_history_of_missteps.html (setting forth a timeline of the effects of 260 ALBANY GOVERNMENT LAW REVIEW [Vol. 12 still defining the relationship between Canada’s over 600 First Nations and the federal government.38 Although the Act has been substantially amended over twenty times,39 it is perhaps most notable from an international perspective for being a source of legislative inspiration for elements of South African apartheid.40 More broadly however, the Indian Act operationalizes the Canadian government’s historical treaty obligations to First Nations. These include the pre-Confederation treaties—namely those in modern day Ontario and (the latter known as the “”)41—as well as the eleven “Numbered Treaties” made between Confederation and 1923 that cover most of Ontario and the entirety of the prairie region.42 With regard to land management, the Indian Act governs over 2800 reserves, consisting of more than three million hectares of land.43 Under the Indian Act, legal title to reserve lands is retained by the Crown, and a First Nation will have a collective interest for the use and benefit of the land.44 While individual members can receive an allotment, this allotment can at most be leased to a non- member party,45 restricting the ability for land to translate into credit. Further, transactions are regulated by the Ministry of Ministry of Indigenous and Northern Affairs Canada (INAC),46 creating a transactional break and restriction on Band agency.47 Although most reserves in Canada are in remote locations where little market demand exists for land, there are many reserves proximate to major, mid-sized, resort, and natural resource centers where reserve land would be worth substantial sums absent

the Canadian Indian Act). 38 See Land Management, INDIGENOUS & N. AFFAIRS CAN., https://www.aadnc- aandc.gc.ca/eng/1100100034737/ 1100100034738 (last visited Mar. 16, 2019). 39 John F. Leslie, The Indian Act: An Historical Perspective, CANADIAN PARLIAMENTARY REV., Summer 2002, at 23, 25. 40 Galloway, supra note 37. 41 Anthony J. Hall, Treaties with Indigenous Peoples in Canada, THE CANADIAN ENCYCLOPEDIA (Jun. 6, 2011), https://www.thecanadianencyclopedia.ca/en/article/aboriginal-treaties. 42 Id. 43 INDIGENOUS & N. AFFAIRS CAN., supra note 38. 44 Id. 45 Id. 46 Id. 47 Tom Flanagan, Opinion, First Nations Property Rights: Going Beyond the Indian Act, GLOBE & MAIL (Mar. 26, 2017), https://www.theglobeandmail.com/globe-debate/first-nations-property-rights- going-beyond-the-indian-act/article1209790/. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 261

Indian Act restrictions on alienation.48 Again, this paper is concerned with the latter category. Yet in addition to the Indian Act and the treaty based reserve system, there are many reserves not stemming from a settled treaty. Outside of its northeastern corner and Vancouver Island, the province of British Columbia (Canada’s third largest by population) is not covered by settled treaties. This gap has brought the issue of Aboriginal title to the forefront in the years following the landmark 1997 Delgamuukw decision from the Supreme Court of Canada.

THE DEVELOPMENT OF ABORIGINAL (INDIGENOUS) TITLE AT THE SUPREME COURT OF CANADA

However, the title issue actually first came before the Supreme Court over twenty years earlier in the 1973 case of Calder v. British Columbia.49 In Calder the Nisga’a Nation petitioned for recognition of Aboriginal title to their unceded traditional lands.50 Although the trial and appellate courts rejected the Nisga’a claims, the Supreme Court of Canada affirmed the existence of Aboriginal title beyond the scope of colonial era law.51 While the Supreme Court could not form a majority on the specific issue of whether the particular claim of the Nisga’a was substantiated, the case had sufficient impact to alter the federal government’s land claim settlement strategy, namely moving the federal government to exchanging uncertain bundles of Indigenous rights for the certainty of settlement agreements.52 From Calder, the next and most significant leap in Supreme Court of Canada Aboriginal title jurisprudence came almost 25 years later in Delgamuukw.53 In Delgamuukw, the Gitxsan and Wet’suwet’en nations made a title claim to 58,000 kilometers of northwestern British Columbia.54 After ten years, failed treaty negotiations, and two decisions against the claimant groups, the

48 See id. 49 Calder v. Attorney-General of B.C., [1973] S.C.R. 313 (Can.). 50 Calder, [1973] S.C.R. 313. 51 Id. at 328. 52 Robert B. Anderson et al., Indigenous Land Rights, Entrepreneurship, and Economic Development in Canada: “Opting-in” to the Global Economy, 41 J. WORLD BUS. 45, 50 (2006). 53 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (Can.). 54 Delgamuukw, 3 S.C.R. at 1011. 262 ALBANY GOVERNMENT LAW REVIEW [Vol. 12 matter reached the Supreme Court of Canada.55 In overturning the British Columbia Court of Appeal, the Supreme Court confirmed that Aboriginal title exists as a sui generis right to the land itself, albeit different from conventional fee simple.56 According to the Court, Aboriginal title is a collective and inalienable right that arises from the occupation of modern Canada by Indigenous peoples prior to the Royal Proclamation of 1763.57 While title includes the right to exclusive use and occupation for a broad range of uses, title lands cannot be used in a way that destroys the attachment to the land that is the basis of a claim.58 The Court also provided criteria for demonstrating title, the first of which was timing—an Aboriginal group must show that the land in question was occupied prior to sovereignty.59 Secondly, if present occupation is relied upon as proof of pre-sovereignty occupation, then there has to be a continuity of occupation.60 Finally, there must be evidence at the time of sovereignty that this occupation was exclusive.61 In a broad sense, the Aboriginal title described in Delgamuukw is a right without limit so far as it provides the right to engage in commercial activities on land for which title is claimed.62 Delgamuukw further developed the “priority principle” from previous Aboriginal rights cases, seemingly watering down the concept to mean that the interests in question must be considered.63 Still Delgamuukw implied that these title rights require a process that begins with a presumption of Aboriginal interest in the land, and further, that a government party cannot arbitrarily override these interests.64 Where a government seeks to infringe upon title rights, the Court framed the threshold question as being whether the public objective is compelling and substantial.65 The Court offered two examples that sufficiently met the test.66 The first set of valid

55 See id. at 1028. 56 Id. at 1080–81. 57 Id. at 1081–82. 58 Id. at 1089. 59 Id. at 1097. 60 Delgamuukw, 3 S.C.R. at 1099. 61 Id. at 1104. 62 See id. at 1110–11. 63 Id. 64 Id. at 1112–13. 65 Id. at 1107. 66 Delgamuukw, 3 S.C.R. at 1108. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 263 governmental objectives concern the preservation of natural resources from exhaustion.67 A second variety of causes that would suffice relate to the protection of significant non-Aboriginal interests.68 This second set of valid objectives most notably included concepts such as environmental protection and economic development.69 Further, when a prospective infringement of title rights is at issue, the Court outlined that “there is always a duty of consultation” and that “this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue.”70 The obligations of this duty were conceptualized as something of a sliding scale that will “vary with the circumstances.”71 For instance, where a minor infringement was contemplated, consultation could be met through “no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title.”72 At the other end however, the Court held that in some instances consultation would necessarily be accompanied by substantial accommodation, and “may even require the full consent of an aboriginal nation.”73 Beyond these basic parameters, the Court left many mechanical questions unanswered. Initially, Delgamuukw brought considerable uncertainty over a vast span of British Columbia, leaving the federal, provincial, and local governments scrambling to interpret the practical implications. Governments and private firms alike feared that the decision created significant potential to delay and jeopardize development of the province’s many untapped natural resources, as well as land use in already urbanized regions.74 The reading of

67 Id. 68 Id. 69 Id. at 1111. 70 Delgamuukw, 3 S.C.R. at 1113. 71 Id. 72 Id. at 1113. 73 Id. 74 See MARY C. HURLEY, CAN. LIBRARY OF PARLIAMENT, ABORIGINAL TITLE: THE SUPREME COURT OF CANADA DECISION IN DELGAMUUKW V. BRITISH COLUMBIA 16– 17 (2000), http://publications.gc.ca/collections/Collection-R/LoPBdP/BP-e/bp459- e.pdf (follow “Continue to Publication” hyperlink); Michael J. McDonald & Thomas Lutes, Compensation After Delgamuukw: Aboriginal Title’s Inescapable Economic Component, in BEYOND THE NASS VALLEY: NATIONAL IMPLICATIONS OF THE SUPREME COURT’S DELGAMUUKW DECISION 425, 426 (Owen Lippert ed., 2000) https://www.fraserinstitute.org/ sites/default/files/NassValley-compensation- after-delgamuukw.pdf. 264 ALBANY GOVERNMENT LAW REVIEW [Vol. 12 the decision to require consent from affected Indigenous groups in certain unclarified circumstances was particularly disconcerting for some parties.75 While Delgamuukw was transformational in establishing a new legal framework for Aboriginal title in Canada, the decision created many more issues that were not satisfactorily resolved. Indeed, the Court itself recognized that the ultimate answer lay in negotiation, intending more for recognition of title to be an impetus for negotiated settlement and reconciliation:

Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve . . . “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”. Let us face it, we are all here to stay.76

Delgamuukw has had significant consequences that can be filed under four primary headings. First, a line of case law has slowly filled in many of the blanks left by the Supreme Court in 1997, bringing a greater degree of legal certainty.77 Second, Delgamuukw has accelerated the imperative on the part of the provincial and federal governments to negotiate final treaty settlements to regain certainty over land and resource use.78 Third, firms wishing to do business in BC—whether in resource or real estate development—also had added reason to partner with Indigenous groups possessing claims over their project lands to likewise mitigate risk and provide certainty.79 Fourth and finally, local governments were left to question whether title claims could impact their ability to regulate land use and development approvals, as well as whether the duty to consult extended to them. 80

75 See McDonald, supra note 74, at 426. 76 Delgamuukw, 3 S.C.R. at 11123–24. 77 See MARIA MORELLATO & MANDELL PINDER, ABORIGINAL TITLE AND RIGHTS: FOUNDATIONAL PRINCIPLES AND RECENT DEVELOPMENTS 11–45 (2008), http://www.cba.org/cba/cle/PDF/Constit09_Morellato_paper.pdf. 78 See BC TREATY COMM’N, A LAY PERSON’S GUIDE TO DELGAMUUKW 1 (1999), http://www.bctreaty.ca/sites/ default/files/delgamuukw.pdf. 79 See MARY C. HURLEY, CAN. LIBRARY OF PARLIAMENT, ABORIGINAL TITLE: THE SUPREME COURT OF CANADA DECISION IN DELGAMUUKW V. BRITISH COLUMBIA 18– 19 (2000), http://publications.gc.ca/collections/Collection-R/LoPBdP/BP-e/bp459- e.pdf (follow “Continue to Publication” hyperlink). 80 See BC TREATY COMM’N, supra note 78, at 3. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 265

CASE LAW DEVELOPMENT AFTER DELGAMUUKW

From Delgamuukw’s initial address of the duty to consult and accommodate in the context of Aboriginal title came greater clarity in Haida Nation v. British Columbia (Minister of Forests).81 The facts concerned a tree farm license between the province and a private company (Weyerhauser) in an area covered by an unproven Aboriginal title claim by the Haida Nation.82 Demonstrating the conceptual difficulty of Delgamuukw for even lower courts, the chambers judge dismissed the Haida petition, outlining that consultation in this instance was a moral, as opposed to legal, obligation.83 In allowing the Haida’s initial appeal, the BC Court of Appeal held that both the provincial Crown and Weyerhauser had a legal duty to consult Indigenous groups with potential interests and rights that may be impacted.84 In again overturning the BC Court of Appeal, the Supreme Court of Canada unanimously found that the exclusive duty to consult and accommodate rested with the Crown. The duty to consult arises from the “honour of the Crown”, specifically “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”85 Building upon the sliding scale set forth in Delgamuukw, the Court outlined that “the scope of the consultation required will be proportionate to a preliminary assessment of the strength of the case supporting the existence of the . . . title, and to the seriousness of the potentially adverse effect upon the . . . title claimed.”86 For instance, with a strong prima facie claim and significant potential adverse impact on an Indigenous group, actions “may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Accommodation

81 See Gérald A. Beaudoin, Delgamuukw Case, THE CANADIAN ENCYCLOPEDIA (Aug. 18, 2017) https://www.the canadian encyclopedia.ca/en/article/delgamuukw-case; The Duty to Consult Just Keeps Evolving, INDIGENOUS CORPORATE TRAINING INC.: WORKING WITH INDIGENOUS PEOPLES BLOG (June 19, 2017), https://www.ictinc.ca/ blog/the-duty-to-consult- just-keeps-on-evolving. 82 Haida Nation v. Minister of Forests of B.C., 2004 SCC 73, para. 4 (Can.). 83 See id. at para. 9. 84 See id. at para. 9. 85 Id at para. 35. 86 Id. at para. 68. 266 ALBANY GOVERNMENT LAW REVIEW [Vol. 12 is achieved through consultation . . . and negotiation.”87 However, the Court clarified that the Delgamuukw concept of consent only applies in some cases of proven claims.88 Where a claim has not yet been proven, a “veto” does not apply.89 Instead, where title has not yet been affirmed, the accommodation in order is based in a “good faith effort” to understand and address concerns through compromise.90 The Supreme Court also detailed that good faith on the part of both parties is necessary.91 Just as the Crown is required to meaningfully consult the First Nation in question to substantially deal with their concerns, the Aboriginal group cannot unreasonably frustrate the Crown’s efforts.92 After Haida Nation, the next landmark in the Supreme Court of Canada’s Aboriginal title series came six years later in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council.93 This decision concerned whether the sufficiency of Crown consultation was within the purview of an administrative tribunal, here the provincial utilities regulator, the BC Utilities Commission, or a Crown corporation (a publicly owned corporation engaged in business, but operating somewhat at arm’s length from elected officials), BC Hydro.94 The Supreme Court found that administrative tribunals can be implicitly or expressly enabled by legislation to engage in consultation as well as to determine whether adequate consultation has occurred.95 However, this power to consult is distinct from a tribunal’s role as an adjudicator on the issue of whether a consultative duty has been discharged, with both being dependent on the enabling legislation.96 In this instance, the enabling legislation did not delegate the duty to consult to the tribunal, but the tribunal had jurisdiction to evaluate the adequacy of consultation.97 Instead, the Crown corporation possessed the Crown’s duty to consult as it was acting for the Crown in these facts.98 Rio Tinto was also significant for expanding on Haida Nation

87 Id. at para. 47. 88 Haida, SCC 73 at para.48. 89 Id. 90 Id. at para. 49. 91 See id. at para. 41–42. 92 Id. 93 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (Can.). 94 See id. at para. 8. 95 Id. at para. 55–60. 96 Id. 97 Id. at para. 66–75. 98 Id. at 81. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 267 with regard to the relation between causality and the duty to consult. Specifically, the Court outlined that the claimant “must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights.”99 Indeed “[p]ast wrongs, including previous breaches of the duty to consult, do not suffice.”100 This interpretation could be seen as somewhat fencing in the duty to consult and accommodate. Finally, Rio Tinto is another instance where the Supreme Court overturned a BC Court of Appeal ruling on a major Aboriginal title case.101 From Rio Tinto, the most recent landmark Supreme Court of Canada decision on Aboriginal title came four years later in Tsilhqot’in Nation v. British Columbia.102 This case dealt with two primary issues. First, it discussed the title claim of the Tsilhqot’in Nation over roughly 1900 square kilometres of traditionally occupied lands, and more specifically, the necessary extent of use and occupation to establish title.103 Secondly, the Supreme Court further discussed how the Crown can validly infringe upon a proven title claim—here the provincial Crown wished to allow clear-cut logging on the claimed lands.104 The trial court held that title had been established through demonstrating regular and exclusive use of the claimed area.105 However the BC Court of Appeal reversed this decision, instead outlining that title for most of the claimed territory had not been shown as the Tsilhqot’in had failed to prove that at the time of European sovereignty there was intensive use of definite portions of land within defined boundaries.106 With the initial title claim, the Supreme Court confirmed the trial court’s broad interpretation of title and rejected the Court of Appeal’s more narrow conception.107 To the Supreme Court, the

99 Rio Tinto, SCC 43 at para. 45. 100 Id. 101 See Sarah Hansen and Chantelle Rajotte, Case comment – Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, ABORIGINAL L. UPDATE, (Miller Thomson, LLP, Toronto, Can.) Nov. 2010, https://www.millerthomson.com/en/ publications/communiques-and-updates/aboriginal-law-update/november- 2010/case-comment-rio-tinto-alcan-inc-v/. 102 Tsilhqot’in Nation v. British Columbia, 2014 S.C.C. 44. 103 See id. at para. 59. 104 See id. at para. 77–88. 105 Id. at para. 58. 106 See id. at paras. 8, 28. 107 Tsilhqot’in Nation v. British Columbia 2014 SCC 44, paras. 27–29 (Can.). 268 ALBANY GOVERNMENT LAW REVIEW [Vol. 12 title claim had been validated based upon evidence of regular use, exclusive historic and continuous occupation of sites within the claimed geography, as well as exclusion of other groups prior to European sovereignty.108 Where title has been established and the Crown wishes to infringe upon title for a public purpose, the Supreme Court applied and refined a three part test developed in the Sparrow Indigenous rights case.109 Namely, the Crown has the burden to demonstrate: “(1) that it discharged its procedural duty to consult and accommodate; (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group.”110 The compelling and substantial obligation must be considered from not only the public perspective, but from that of the Indigenous group as well, in turn effectively furthering the broader objective of reconciliation.111 Likewise, the Crown’s fiduciary duty—in so far as “the Crown’s underlying title in the land is held for the benefit of the Aboriginal group and constrained by the Crown’s fiduciary or trust obligation to the group”—has two components.112 First, government actions must respect title as an interest held for “present and future” generations, and cannot “substantially deprive future generations of the benefit of the land.”113 Secondly, and explicitly building on the proportionality concept in Delgamuukw, the government must minimize the impairment of the Indigenous interest. Where the government fails to adequately consult or accommodate consistent with its fiduciary obligations, the adversely impacted Indigenous group has access to a number of prospective remedies—these include injunctions, damages, or orders for consultation and accommodation.114

IMPACTS OF THE ABORIGINAL TITLE CASE LAW ON NEGOTIATION AND SETTLEMENT

The past twenty years has seen this line—Delgamuukw, Haida

108 Id. at paras. 24–32. 109 R. v. Sparrow, [1990] 1 S.C.R. 1075, 1113–18 (Can.). 110 Tsilhqot’in Nation, 2014 SCC at para. 77. 111 Id. at para. 81. 112 Id. at para. 85. 113 Id. at para. 86. 114 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council 2010 SCC 43, para. 37 (Can.). 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 269

Nation, Rio Tinto, and Tsilhqot’in—of Supreme Court decisions flesh out the law on Aboriginal title.115 The Supreme Court has entrenched title as a significant land interest that imposes substantial obligations on the government where an action may infringe upon a proven or unproven claim.116 While this judicial lawmaking has certainly shifted the balance of power from being strictly with the provincial and federal governments, to providing Indigenous groups with bargaining power proportionate to the strength of their claim, it has stopped far short of providing Indigenous title claimants a veto over activities on their titled lands.117 Thus the framework has been intended to bring all parties to the settlement table. In the years after Delgamuukw, treaty settlement has become a priority of the federal and BC governments,118 supported in large part by private sector resource and real estate development firms (representing the two most significant sectors of the BC economy) that desire business certainty, as well as by comprehensive cost- benefit analyses.119 Even formerly treaty skeptic governments have embraced treaty settlements as a clearly net beneficial outcome.120 Given the new legal reality passed down from the

115 See PEIGI WILSON ET AL., THE ICCA CONSORTIUM, AN ANALAYSIS OF INTERNATIONAL LAW, NATIONAL LEGISLATION, JUDGEMENTS, AND INSTITUTIONS AS THEY INTERRELATE WITH TERRITORIES AND AREAS CONSERVED BY INDIGENOUS PEOPLES AND LOCAL COMMUNITIES 43, 58, 60 (2012), https://www.iccaconsortium.org/wp-content/uploads/2015/08/legal-review-8- canada-2012-en.pdf. 116 See MARIA MORELLATO & MANDELL PINDER, ABORIGINAL TITLE AND RIGHTS: FOUNDATIONAL PRINCIPLES AND RECENT DEVELOPMENTS 53 (2009), http://www.cba.org/cba/cle/PDF/Constit09_Morellato_paper.pdf. 117 See Give Indigenous People Veto Power over Development on Their Lands, Report Urges, CBC News, (Sept 21, 2015), https://www.cbc.ca/news/business/give- indigenous-people-veto-power-over-development-on-their-lands-report-urges- 1.3237105. 118 See MARY C. HURLEY, CAN. LIBRARY OF PARLIAMENT, ABORIGINAL TITLE: THE SUPREME COURT OF CANADA DECISION IN DELGAMUUKW V. BRITISH COLUMBIA 1819 (2000), http://publications.gc.ca/collections/Collection-R/LoPBdP/BP-e/bp459- e.pdf (follow “Continue to Publication” hyperlink). 119 B.C. TREATY COMM’N & PRICE WATERHOUSE COOPERS, FINANCIAL AND ECONOMIC IMPACTS OF TREATY SETTLEMENTS IN BC ii (2009), http://www.bctreaty.ca/sites/default/files/BC-Treaty-Commission- PricewaterhouseCoopers-Report.pdf. 120 See Anthony J. Hall, Treaties with Indigenous Peoples in Canada, THE CANADIAN ENCYCLOPEDIA (Jun. 6, 2011), https://www.thecanadianencyclopedia.ca/en/article/aboriginal-treaties; Keith Crowe, Comprehensive Land Claims: Modern Treaties, THE CANADIAN ENCYCLOPEDIA (Mar. 2, 2015), https://www.thecanadianencyclopedia.ca/ 270 ALBANY GOVERNMENT LAW REVIEW [Vol. 12

Supreme Court, treaty certainty is viewed as a win-win. Conversely, by the time a project has gotten to the litigation stage, both parties have lost. Not only is litigation costly, but it can take years to resolve—Delgamuukw itself spanned almost fifteen years.121 Additionally, the adversarial nature of litigation can lower the possibility of an amicable and mutually beneficial agreement or partnership from being formed. Although modern treaties are custom affairs, a comprehensive settlement will generally address self-government structures, jurisdiction over lands and resources, as well as significant cash payments. While there are currently over sixty Indigenous groups participating in roughly forty treaty negotiation processes in British Columbia, representing almost forty percent of Indian Bands in the province, the reaching of final settlements has been painstakingly slow.122 Run through the BC Treaty Commission, the treaty process is divided into six stages: intent to negotiate, readiness to negotiate, negotiation of framework, negotiation of agreement in principle, finalization of treaty, and treaty implementation.123 Despite the impetus to negotiate from the Supreme Court, only four of sixty-one groups formally involved in negotiations at the second level or higher, have reached the implementation stage.124 The bulk of the involved groups (forty- two) are instead at the stage of negotiating agreements in principle.125 This being said, negotiation has been made more difficult by multiple overlapping claims.126 Since the litigation process can realistically last upwards of a decade with appeals, negotiations can be delayed while Indigenous groups try to prove a title claim to subsequently improve their bargaining position. Similarly,

en/article/comprehensive-land-claims-modern-treaties. 121 See Trevor Jang, Twenty Years After Historic Delgamuukw Land Claims Case, Pipeline Divides Gitxsan Nation, THE DISCOURSE (Feb. 7, 2017), https://www.thediscourse.ca/reconciliation/twenty-years-historic-delgamuukw- land-claims-case-pipeline-divides-gitxsan-nation. 122 Negotiation Update, B.C. TREATY COMMISSION, http://www.bctreaty.ca/negotiation-update (last visited Apr. 6, 2019). 123 Six Stages, B.C. TREATY COMMISSION, http://www.bctreaty.ca/six-stages (last visited Apr. 6, 2019). 124 B.C. TREATY COMMISSION, supra note 122. 125 Id. 126 Overlapping Land Claims Stalling B.C. Treaties, Says Commission, CBC NEWS (Oct. 7, 2014), http://www.cbc. ca/news/canada/british- columbia/overlapping-land-claims-stalling-b-c-treaties-says-commission- 1.2791474. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 271

Indigenous groups may be susceptible to something of a first- mover disadvantage effect,127 whereby some groups are reluctant to be among the early settlers, fearing that later settlements backed by better proven claims will yield more valuable settlement packages.128

ABORIGINAL TITLE AND LOCAL GOVERNMENTS

While Supreme Court decisions subsequent to Delgamuukw have in many respects provided greater judicial certainty regarding Indigenous title in BC,129 one aspect that has not been sufficiently dealt with concerns title claims overlaying populated and incorporated urban areas, where land use is regulated by local governments. Considering there are unsettled title claims overlapping with most population centers in the province, this would seem to be a significant aspect of title jurisprudence, with the potential to have the most substantial direct impact on the greatest number of British Columbians.130 Canadian local governments are a statutory creation of provincial governments.131 In BC, the powers and responsibilities of local governments—municipalities (excluding the City of Vancouver which has its own city charter) and regional districts (a unit of government somewhat akin to an American county)—are defined in the Community Charter132 and the Local Government Act.133

127 See William Boulding and Markus Christen, First-Mover Disadvantage, HARV. BUS. REV., Oct. 2001, https://hbr.org/2001/10/first-mover-disadvantage. 128 See also HURLEY, supra note 118, at 12 (describing the tendency for valuable indigenous resources to disappear while negotiations take far too long). 129 See MARIA MORELLATO & MANDELL PINDER, ABORIGINAL TITLE AND RIGHTS: FOUNDATIONAL PRINCIPLES AND RECENT DEVELOPMENTS 11–45 (2008), http://www.cba.org/cba/cle/PDF/Constit09_Morellato_paper.pdf. 130 See Rob Shaw, Aboriginal Title Does Not Overrule Private Property, But B.C. Limited on What It Can Do with Crown Land: Experts, VANCOUVER SUN (June 28, 2014), http://www.vancouversun.com/life/aboriginal+title+does+ overrule+private+property+limited+what+with+crown+land+experts/9982642/st ory.html (“The high court didn’t specifically address the issue, but it may form part of future rulings for land title claims in urban areas.”). 131 See CITY SOLICITOR, CITY OF TORONTO, POWERS OF CANADIAN CITIES—THE LEGAL FRAMEWORK 1–3 (2001), https://www.toronto.ca/ext/digital_comm/inquiry/inquiry_site/cd/gg/add_pdf/77/G overnance/Electronic_Documents/Other_CDN_Jurisdictions/Powers_of_Canadia n_Cities.pdf. 132 Community Charter, S.B.C. 2003, c. 26 (Can.). 133 Local Government Act, R.S.B.C. 2015, c. 1 (Can.). 272 ALBANY GOVERNMENT LAW REVIEW [Vol. 12

Although the Supreme Court of Canada has not addressed title in the context of local government, the issue of whether municipalities have the duty to consult and accommodate came before the BC Court of Appeal in Neskonlith Indian Band v. Salmon Arm (City).134 This case concerned the issuance of a development permit by the City of Salmon Arm—a community of almost 20,000 in the Southern Interior region—for a shopping center on privately held lands in a floodplain. Under Salmon Arm’s Official Community Plan (OCP), a hazardous development permit was required for such a development.135 The Neskonlith, a Band with three reserve communities in the region, one of which borders Salmon Arm, asserted title over the proposed development area.136 Based on the legitimate concerns of flooding present, the Neskonlith argued that future flood control measures would impact their interests and that they had not been adequately consulted by the City.137 The Local Government Act is the primary land use and planning statute in BC, authorizing municipal governments to implement long term statements of land use planning objectives in the form of OCPs. In the creation of OCPs, the Local Government Act details that local governments must consider whether consultation with “first nations” is required.138 Interestingly however, in light of the statute’s plain language and the Rio Tinto decision, the Court of Appeal in Gardner v. Williams Lake (City) outlined that this provision “does not engage the honour of the Crown vis-à-vis First Nations.”139 The Neskonlith decision was careful to set out that the enabling statutes acknowledge municipalities need adequate power, authority, and resources, but that local government power is “balanced by the responsibility of the [p]rovincial government to consider the interests of the citizens of British Columbia generally.”140 Citing Rio Tinto, the [CJ1]decision highlighted that the notion of Crown consultation duty automatically flowing from delegated provincial authority “cannot be accepted” and similarly

134 Neskonlith Indian Band v. Salmon Arm (City), 2012 BCCA 379, paras. 3– 4 (Can. B.C.). 135 Id. at para. 3. 136 Id. 137 Id. at para. 4. 138 Local Government Act § 475 (Can.). 139 Neskonlith Indian Band, 2012 BCCA at para. 9 (Can. B.C.) (quoting Gardner v. Williams Lake (City), 2006 BCCA 307, para. 24 (Can. B.C.)). 140 Id. at para. 18. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 273 denied any “upstream” duty to consult that would attach “‘automatically’ because the municipality is making a decision said to affect Aboriginal rights or interests.”141 Matters outside of “statutory parameters” were viewed as simply not within the scope of municipalities to evaluate as “local governments lack the authority to engage in the nuanced and complex constitutional process involving ‘facts, law, policy and compromise.’”142 Summing up the denial of a duty to consult, the appellate court outlined:

And while it is true that First Nations may experience difficulty in seeking appropriate remedies in the courts in cases like this one, it is also true that as creatures of statute, municipalities do not in general have the authority to consult with and if indicated, accommodate First Nations as a specific group in making the day- to-day operational decisions that are the diet of local governments.143

It may be worth considering this statement in the context of the BC Court of Appeal’s poor record in decisions related to Aboriginal title upon appeal to the Supreme Court of Canada. Accordingly, the Neskonlith decision was comprehensive in its citation and deference to the Supreme Court of Canada’s jurisprudence on consultation, perhaps in preparation for appeal.144 Yet until a similar set of facts reaches the Supreme Court, local governments can be advised that they have no duty to consult where Indigenous title claims may overlay and be adversely impacted when a local government land use decision is at issue. While the provincial duty remains, local governments can operate secure in the knowledge that their otherwise valid land use decisions are not subject to title claims by Indigenous groups.

MODELS OF URBAN LAND USE FOR INDIGENOUS ECONOMIC DEVELOPMENT

The case law framework leaves Indigenous groups with title claims on unceded urban lands two primary options to impact land use development outside of existing reserves for the purpose of economic development. First, these groups can pursue non-treaty

141 Id. at paras. 67–68. 142 Id. at para. 67. 143 Id. at para. 70. 144 See id. 274 ALBANY GOVERNMENT LAW REVIEW [Vol. 12 settlements that are limited to certain particular claims against the provincial or federal governments, while also conducting treaty settlement negotiations on a longer horizon.145 Indeed where there have been instances of accommodation or compensation of title claims short of final settlement within incorporated municipalities, these have stemmed from the sale or development of provincial and federally held urban lands and the accommodation or compensation has flowed directly from either the provincial or federal government. Alternatively, urban Indigenous groups can concentrate on advancing through the final settlement process, to combine long term certainty and significant elements of self-government with control over land. The difference between these two models can be primarily summarized as one of regulatory control. While the first model only provides ownership of land—typically held through an Indigenous-owned development corporation—the second extends beyond fee simple ownership to also replacing the local government regulatory structure over that land with self- government. Recent years have demonstrated both of these models in the 2.4 million person Vancouver region. The twenty years since Delgamuukw have also seen a massive influx of capital from East Asia into the regional residential real estate market.146 Combined with limited land supply (the region is hemmed in by the ocean, mountains, and US border on three sides, and the province maintains a substantial agricultural land reserve), as well as strong domestic demand, Metro Vancouver has become Canada’s most expensive residential real estate market, and even more expensive than any American residential real estate market in terms of median local income to median home price.147 Yet the Vancouver housing crisis has brought opportunity for

145 See MARIA MORELLATO & MANDELL PINDER, ABORIGINAL TITLE AND RIGHTS: FOUNDATION PRINCIPLES AND RECENT DEVELOPMENTS 30 (2009), http://www.cba.org/cba/cle/PDF/Constit09_Morellato_paper.pdf (showing where agreements resolved particular disputes between the Band and the Province). 146 Dan Levin, Chinese Scions’ Song: My Daddy’s Rich and My Lamborghini’s Good-Looking, N.Y. TIMES (Apr. 12, 2016), https://www.nytimes.com/2016/04/13/world/americas/canada-vancouver-chinese- immigrant-wealth.html. 147 In gross terms, Vancouver is third most expensive after Manhattan and San Francisco. See Iuliana Mindru, Housing Affordability: How Fast Could You Pay off Your Home in the 50 Most Populous Cities in North America?, POINT2HOMES, (Dec. 18, 2017), https://www.point2homes.com/news/canada-real- estate/housing-affordability-north-america.html. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 275 local Indigenous groups. The combination of market demand for land, as well as the enhanced bargaining positions provided by the above discussed line of Supreme Court of Canada decisions, have set the stage to break generational poverty traps, and gain both prosperity and a far greater degree of self-agency over their traditional and unceded territories.148 This part further overviews the two discussed models of impacting land use development to accelerate socio-economic development in the context of two case studies—the Musqueam and the Tsawwassen.

The settle as you go model: the

The traditional territories of the Musqueam cover much of what is currently incorporated into the municipalities of Vancouver and Richmond, and the University of British Columbia endowment lands. The Musqueam reserve is home to roughly 1200 members, and because of the desirability of their reserve lands, the Musqueam have been active in past decades leasing land to non- members for single family homes.149 However despite well located reserve lands where all neighboring non-reserve properties are valued in the multi-millions of dollars, proximity to a strong off- reserve job market, and access to some of the best performing public schools and hospitals in the province, many Musqueam members have long resided in substandard on-reserve housing and have experienced human development outcomes well below non- Indigenous populations in the area.150 For instance, while the sixty to seventy-five percent of Musqueam students graduating from high school within six years exceeded the province-wide fifty percent Indigenous rate, it lagged behind the Vancouver school district rate of eighty-five percent for non-Indigenous students.151

148 See Tristen Hopper, B.C. First Nation Leads Historic and Controversial Move Toward Aboriginal Private Home Ownership, NAT’L POST (Nov. 8, 2013), https://nationalpost.com/news/canada/b-c-first-nation-leads-historic-and- controversial-move-toward-aboriginal-private-home-ownership. 149 Mike Howell, Musqueam: The Neighbourhood at a Glance, VANCOUVER COURIER (Sep. 26, 2013), http://www. vancourier.com/community/vancouver- special/musqueam/musqueam-the-neighbourhood-at-a-glance-1.639863. 150 Anna Mehler Paperny, Musqueam, by the Numbers, GLOBE & MAIL (Mar. 27, 2017), https://www.theglobeand mail.com/news/national/musqueam-by-the- numbers/article18452442/. 151 MUSQUEAM FIRST NATION, MUSQUEAM FIRST NATION: A COMPREHENSIVE SUSTAINABLE COMMUNITY DEVELOPMENT PLAN 69 (2011), https://www.musqueam.bc.ca/wp-content/uploads/2018/06/MUSQUEAMccp- 112611-HiRes.pdf. 276 ALBANY GOVERNMENT LAW REVIEW [Vol. 12

Despite socio-economic challenges,152 the Musqueam have adeptly recognized their strong title claims over valuable land and leveraged the new title framework to extract settlements from the provincial and federal governments. However, these settlements have come outside the primary treaty settlement framework— while the Musqueam are at stage four of the treaty process, they have not advanced beyond their framework agreement in 2005.153 Instead, the Musqueam have signed substantial non-treaty contractual settlements with the provincial and federal governments. The 2008 Reconciliation, Settlement and Benefits Agreement154 arose out of a 2005 BC Court of Appeal decision in Musqueam Indian Band v. British Columbia.155 Here the Musqueam challenged the sale agreement of a golf course on land the Musqueam claimed Indigenous title to, from the provincial government to the University of British Columbia, on the grounds of inadequate accommodation and consultation.156 While the province had acknowledged the Musqueam had substantiated a prima facie title claim to the golf course lands, and the lands were a subject of negotiation at the treaty settlement table, the province went ahead with the transaction anyway.157 The Court of Appeal ordered that the land sale be suspended for two years to allow for accommodation, backed by the threat of further injunctions.158 This decision prompted the province to offer the Musqueam a package then valued at C$250 million159 to settle the golf course and a number of other disputes, including a casino site in Richmond and a pollution claim.160 The package contained a fee

152 See Mehler Paperny, supra note 150. 153 Negotiation Update, B.C. TREATY COMMISSION, http://www.bctreaty.ca/negotiation-update (last visited Apr. 6, 2019). 154 MUSQUEAM INDIAN BAND & PROVINCE OF B.C., RECONCILIATION, SETTLEMENT AND BENEFITS AGREEMENT, (2008), https://www2.gov.bc.ca/gov/content/environment/natural-resource- stewardship/consulting-with-first-nations/first-nations-negotiations/first- nations-a-z-listing/musqueam-indian-band (follow “Musqueam Reconciliation, Settlement and Benefits Agreement” hyperlink). 155 Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management), 2005 BCCA 128 (Can. B.C.). 156 Id. at para. 1. 157 Id. at para. 15. 158 Id. at para. 101. 159 Musqueam Approve Land and Cash Deal Worth up to $250M, CBC NEWS (Mar. 11, 2008), http://www.cbc.ca/ news/canada/british-columbia/musqueam- approve-land-and-cash-deal-worth-up-to-250m-1.718335. 160 MUSQUEAM INDIAN BAND & PROVINCE OF B. C., supra note 154, at 13. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 277 simple transfer of the fifty-nine acre golf course lands (subject to the maintenance of a golf course until 2083), twenty acres of the University Endowment Lands, fee simple title to the casino site, and C$20 million in cash.161 The agreement also included provision to alter the University Endowment Lands land use bylaw to allow for dense development on the twenty acre parcel—as the University Endowment Lands are an unincorporated area directly governed through the provincial municipal affairs ministry,162 this governance and land transfer structure was amenable to side- stepping the City of Vancouver’s development regulations. Almost a decade after the settlement, construction of a large mixed-use community on the endowment lands has commenced through the Musqueam Development Corporation.163 The Development Corporation has in turn partnered with a prominent local development company, with the finished product including 1250 homes and 30,000 square feet of commercial space.164 Musqueam Chief Wayne Sparrow outlined an explicit intent of gaining economic self-sufficiency through the project: “the vision from our community is always to hold these lands and create enough wealth and generation so we can be self-sufficient and pay for our programs and deliveries in our own community.”165 With a massive spike in land values from already high levels ten years ago, and similarly university-proximate one-bedroom condominiums selling for over C$700,000, the market value of these homes could exceed C$1 billion.166

161 Id. See also Musqueam Reconciliation, Settlement and Benefits Agreement Implementation Act, S.B.C. 2008, c. 6, §§ 2, 3 (Can.). 162 About, U. ENDOWMENT LANDS, http://www.universityendowmentlands.gov.bc.ca/about/about.htm (last visited Apr. 8, 2019); Structure and Governance, U. ENDOWMENT LANDS, http://www.universityendowmentlands.gov.bc. ca/about/structuregovernance.htm (last visited Apr. 8, 2019). 163 See Marcus Mitanis, Musqueam Breaks Ground on Mixed-Use Project Near UBC, SKYRISE VANCOUVER, (Sep. 29, 2017), https://vancouver.skyrisecities.com/news/2017/09/musqueam-breaks-ground- mixed-use-project-near-ubc. 164 See Musqueam Band Breaks Ground on 1,250 Home Development Near UBC, CTV NEWS VANCOUVER (Sep. 29 2017), https://bc.ctvnews.ca/musqueam- band-breaks-ground-on-1-250-home-development-near-ubc-1.3612699. 165 Id. 166 See Jane Seyd, First Nations Ink 480M Jericho Lands Deal, NORTH SHORE NEWS, (Apr. 15, 2016), https://www. ns news.com/news/first-nations-ink-480m- jericho-lands-deal-1.2232471; Condos in UBC for Sale in Vancouver Westside, KEN WYDER VANCOUVER WESTSIDE REALTOR, https://www.pointgreynow.com/listings/university/ condos/ (last visited Apr. 4, 278 ALBANY GOVERNMENT LAW REVIEW [Vol. 12

Beyond this 2008 settlement, the Musqueam have also participated in major land transfer settlements with the federal and provincial governments concerning the Jericho lands.167 A joint venture partnership with two other Indigenous Nations with overlaying title claims, the Tsleil-Waututh and Squamish, the Jericho lands are the site of a military garrison, a school, and a park.168 Settlement has come in two phases. First, the federal government agreed to sell their fifty-two acres in 2014 for C$207 million.169 Two years later, the same three Indigenous partners agreed to purchase the forty acres owned by the province for C$480 million.170 The differential in price per acre can be accounted for in some part by the thirty percent increase in regional benchmark home prices in 2015–2016.171 However even with the market appreciation adjustment, the sale prices have been clearly undervalued, with local developers estimating the total Jericho bare land value in the range of C$2 billion to C$3 billion.172 Unlike with the University Endowment Lands sale, any development on Jericho lands will be subject to the City of Vancouver’s land use regulations and the land made either far more or less valuable by zoning decisions.173 Both the University Endowment Lands and Jericho land deals can be seen as direct results of case law development on the subject of Indigenous title. With the Jericho agreements especially, the provincial and federal governments have taken a significant loss relative to market value, likely knowing that any land sale that

2019). 167 See Frank O’Brien, First Nations Only Bidder Allowed on Jericho Lands, BUSINESS IN VANCOUVER, (Feb. 25, 2016), https://biv.com/article/2016/02/first- nations-only-bidder-allowed-jericho-lands. 168 See Jericho Lands, CAN. LANDS COMPANY, http://en.clc.ca/property/22 (last visited Apr. 4, 2019). 169 See Justin McElroy, First Nations Plan to Buy Remaining Jericho Lands from B.C. Government, GLOBAL NEWS, (Feb. 12, 2016), https://globalnews.ca/news/2515539/first-nations-plan-to-buy-remaining-jericho- lands-from-b-c-government/. 170 B.C. Citizens’ Servs., First Nations Acquire Provincial Jericho Land Parcel, B.C. GOV NEWS (Apr. 8, 2016), https://news.gov.bc.ca/releases/2016MTICS0010- 000538. 171 See Home Sales Drop in July, New Figures Show, CBC NEWS (Aug. 3, 2016), http://www. cbc.ca/news/canada/british-columbia/real- estate-vancouver-sales-1.3706119. 172 See Peter O’Neil & Matthew Robinson, The $3-Billion Debate over Vancouver’s Jericho Lands, VANCOUVER SUN (Feb. 1, 2014), http://www.vancouversun.com/news/billion+debate+over+Vancouver+Jericho+L ands/9456829 /story.html. 173 See id. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 279 did not involve the three Indigenous groups claiming title to the area would be rife with uncertainty.174 That the claimant Indigenous groups have been able to capture hundreds of millions in value beyond the purchase price, signals the impact that the significant change in bargaining power from the line of Indigenous title related Supreme Court of Canada decisions has had on land outcomes.175 That neither the Jericho nor the endowment lands deals have been a part of a final treaty settlement allows the Musqueam to still retain bargaining leverage for a future final settlement.

The settlement for certainty model: the

Located at the southwestern corner of Metro Vancouver, surrounded by the suburban municipality of Delta, the Tsawwassen First Nation has over 400 members, approximately half of whom reside on their lands.176 The Tsawwassen have explicitly viewed legal uncertainty over their lands and Indian Act restrictions as a substantial impediment to socio-economic development.177 Thus instead of the a-la-carte approach taken by the Musqueam and other Indigenous groups in the region, the Tsawwassen accelerated through the treaty process, concluding the Tsawwassen First Nation Final Agreement (the Tsawwassen Treaty) in 2009.178 The Tsawwassen Treaty includes a total of 724 hectares of fee simple land,179 of which 372 hectares is former provincial Crown lands,180 290 hectares of former reserve lands,181 and sixty-two

174 See Frank O’Brien, First Nations Only Bidder Allowed on Jericho Lands, BUSINESS IN VANCOUVER (Feb. 25, 2016), https://biv.com/article/2016/02/first- nations-only-bidder-allowed-jericho-lands. 175 Patrick Macklem, What’s Law Got to Do with It? The Protection of Aboriginal Title in Canada, 35 OSGOODE HALL L.J. 126, 132, 134–36 (1997), https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1613& context=ohlj. 176 See TFN Vision & Mandate: Who We Are, TSAWWASSEN FIRST NATION, http://tsawwassenfirstnation.com/ general-info/tfn-vision-mandate/ (last visited Apr. 4, 2019). 177 See Our Treaty, TSAWWASSEN FIRST NATION, http://tsawwassenfirstnation.com/general-info/treaty/ (last visited Apr. 4, 2019). 178 See id. 179 INDIGENOUS & N. AFFAIRS CAN., TSAWWASSEN FINAL AGREEMENT: TSAWWASSEN LANDS 1 (2010), https:// www.aadnc-aandc.gc.ca/DAM/DAM- INTER-BC/STAGING/texte-text/lnd_1100100022788_eng.pdf. 180 Id. 181 Id. 280 ALBANY GOVERNMENT LAW REVIEW [Vol. 12 hectares of other lands that remain within the jurisdiction of the Delta municipality.182 The Tsawwassen have lawmaking powers over all lands except those sixty-two hectares remaining within Delta.183 While federal and provincial laws still apply on self- governed Tsawwassen lands, the Tsawwassen have jurisdiction over a range of functions, including self-governance, land management, health care, education, social assistance, as well as child and family services.184 In addition to land and governance, the Tsawwassen also received an initial transfer of C$13.9 million, and will see five-year funding packages for services otherwise in provincial jurisdiction, but delegated under the Tsawwassen Treaty.185 Indian Act tax exemptions will be completely phased out after twelve years, with the Tsawwassen having their own taxation powers.186 The Tsawwassen are exempt from the Local Government Act and instead have developed their own land use and development regulations.187 Indeed the Tsawwassen have many powers traditionally delegated to municipal governments, including public works, business licensing, traffic regulation, and fire protection.188 The Tsawwassen are also the first and only Indigenous group (out of eleven in the region) to be a full voting member of the Metro Vancouver regional district, as well as Translink (the regional transit authority).189 The Tsawwassen lands are likewise now exempt from alienation restrictions in the federal Indian Act.190 The province still retains ownership over major highways cutting through the Tsawwassen

182 Id. 183 Id. 184 TSAWWASSEN FIRST NATION, supra note 177. 185 B.C. MINISTRY OF ABORIGINAL RELATIONS & RECONCILIATION, THE TSAWWASSEN FIRST NATION FINAL AGREEMENT, https://www.yumpu.com/en/document/read/22051509/tsawwassen-first-nation- final-agreement-brochure (last visited Apr. 7, 2019). 186 Id. 187 See Planning and Development, TSAWWASSEN FIRST NATION, http://tsawwassenfirstnation.com/programs-and-services/planning-and- development/ (last visited Apr. 4, 2019). 188 B.C. MINISTRY OF ABORIGINAL RELATIONS & RECONCILIATION, THE TSAWWASSEN FIRST NATION FINAL AGREEMENT, https://www.yumpu.com/en/document/read/22051509/tsawwassen-first-nation- final-agreement-brochure (last visited Apr. 7, 2019). 189 Id. 190 See INDIGENOUS & N. AFFAIRS CAN., TSAWWASSEN FINAL AGREEMENT: TSAWWASSEN LANDS 1 (2010) https://www.aadnc-aandc.gc.ca/DAM/DAM-INTER- BC/STAGING/texte-text/lnd_1100100022788_eng.pdf. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 281 lands and non-highway roads on the Tsawwassen lands remain open to the public. Tsawwassen lands also have a higher procedural threshold for expropriation by the provincial or federal governments.191 Of the provincial Crown lands, roughly half have been removed from the provincial Agricultural Land Reserve (ALR).192 This is significant because most real estate development is precluded from ALR land, meaning that the Tsawwassen have taken land that was previously relegated to farming and have been able to develop far more lucrative commercial, residential, and industrial uses. In all three phases, the Tsawwassen have partnered with leading development companies to implement and market their vision, a vision that has been far more traditionally suburban and low density than the regional trend. Specifically, the Tsawwassen have been able to plug a significant market gap for three forms of real estate development: lower density single-family and semi-detached homes, industrial land, and a regional outlet-style shopping center.193 With significant demand for residential land supply, there are relatively few greenfield non-strata housing starts in the region (single- family housing starts in Vancouver and inner suburbs typically involve the demolition of an existing single-family home) and most greenfield starts are in outer suburbs.194 Relative to the region as a whole where multi-family starts dominate, a far higher proportion of the 2800 homes the Tsawwassen have planned for their lands are instead single-family or semi-detached. Further, the Tsawwassen lands are exempt from the twenty percent foreign investor tax that has been imposed in much of the province.195 These two market advantages, as well as strong general regional market demand, have seen brisk housing sales on the Tsawwassen

191 See id. at 2. 192 Id. 193 See Larry Pynn, Retail, Industrial Ventures a ‘Game Changer’ for Tsawwassen First Nation, VANCOUVER SUN (Aug. 24, 2017), https://vancouversun.com/news/local-news/retail-industrial-ventures-a-game- changer-for-tsawwassen-first-nation. 194 See Thomas Davidoff et al., Opinion, Can More Housing Supply Resolve the Affordability Crisis in Vancouver?, GLOBE & MAIL (Jan. 14, 2018), https://www.theglobeandmail.com/news/british-columbia/can-more-housing- supply-resolve-the-affordability-crisis-in-vancouver/article37601341/. 195 Additional Property Transfer Tax for Foreign Entities & Taxable Trustees, BRITISH COLUMBIA, https://www2. gov.bc.ca/gov/content/taxes/property- taxes/property-transfer-tax/additional-property-transfer-tax (last visited Apr. 12, 2019). 282 ALBANY GOVERNMENT LAW REVIEW [Vol. 12 lands. Second, limited land supply, strong residential demand, and a significant transport sector (Port Metro Vancouver is the seventh largest container port in the Americas196) has likewise placed strain on industrial land supply near major highways and port terminals.197 The Tsawwassen lands are strategically located near the Deltaport terminal and have superior interior highway and US border access relative to other Port Metro Vancouver terminals. Accordingly, the Tsawwassen intended to develop 300 acres for port-related industrial use, development that was originally estimated to eventually generate a staggering C$245 million in annual income.198 Finally, the Tsawwassen have entered into a partnership with retail development giant Ivanhoe Cambridge to build the fourth largest enclosed shopping center in the province, the 1.2 million square foot Tsawwassen Mills.199 In a relatively sparsely populated corner of the region with excellent highway access, and a selection of unique “outlet style” and big-box retailers, Tsawwassen Mills is intended to be a retail destination.200 As other more urban malls in the region convert into mixed use developments with significant high rise housing components, Tsawwassen Mills is a concept that likely would not have been feasible anywhere else within Metro Vancouver.201 In fact, the project saw significant opposition within the region, and was viewed as an affront to the regional growth strategy.202 However,

196 Top 15 Ports in the Americas, NOW THAT’S LOGISTICS, (Mar. 16, 2018), https://nowthatslogistics.com/top-15-ports-in-the-americas/. 197 See Leo Quigley, Industrial Land Shortage Threatens Port Metro Vancouver, JOC.COM (Apr. 17, 2016), https:// www.joc.com/port- news/international-ports/port-metro-vancouver/industrial-land-shortage- threatens-port-metro-vancouver_20160417.html. 198 Peter Mitham, Tsawwassen First Nation Suspends Marketing of Industrial Lands, BUSINESS IN VANCOUVER, (Aug. 30, 2017) https://biv.com/article/2017/08/tsawwassen-first-nation-suspends-marketing- industr. 199 Ivanhoe Cambridge II Inc., DELTA CHAMBER OF COM., http://web.deltachamber.ca/Shopping-Centre-Developer-and-Manager/Ivanhoe- Cambridge-740 (last visited Apr. 12, 2019). 200 See David Lee, Tsawwassen Mills Mall—Shopping Destination and More in British Columbia, MILES GEEK (July 2, 2018), https://www.milesgeek.com/tsawwassen-mills-mall-shopping. 201 See Chuck Chiang, Tsawwassen Mills to Be the Last New Metro Vancouver Mall for a While?, VANCOUVER SUN (Sept. 27, 2016), https://vancouversun.com/business/local-business/tsawwassen-mills-to-be-the- last-new-metro-vancouver-mall-for-a-while. 202 Peter Ladner, Metro’s Regional Growth Strategy a Victim of Drive-By 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 283 the Tsawwassen’s land use independence has allowed them to fill this unique gap in the regional retail marketplace on their own terms.

DISCUSSION AND CONCLUSIONS:

From this comprehensive treaty settlement, the Tsawwassen have a clear path to economic development and self-sufficiency that can finance further social development. Given their relatively small membership, the Tsawwassen are likely to become financially independent from the province, and one of the wealthiest Indigenous groups in Canada on a per-capita (and perhaps also gross) basis. The final certainty afforded by taking a risk of final settlement, has also allowed the Tsawwassen to be first to market among Indigenous groups in the Vancouver region, and has seen growth come quickly. While other Indigenous groups may hold out for more in final settlements that could still take decades to materialize, the Tsawwassen’s early gains are likely to place them in a long-term advantageous position from a financial present value perspective, as well as benefiting from generational compounding of social development.203 Yet outcomes have also been strong for those Indigenous groups smartly leveraging judicial developments to attain advantageous non-treaty settlements that have likewise provided a path to substantial economic development that can subsequently finance social development and self-sufficiency.204 These judicial decisions have created and developed a body of law on Indigenous title, enumerating certain obligations for the provincial and federal Crown.205 At the same time, the obligations of the Crown under this new framework have not extended to local governments, perhaps the level of government with the most impact over land use and development decisions. Both of the case studies developed in this paper have found workarounds for the absence of local government duties to consult and accommodate, the Musqueam

Planning, BUSINESS IN VANCOUVER (Oct. 25, 2016), https://biv.com/article/2016/10/metros-regional-growth-strategy-victim-drive- plann. 203 See Pynn, supra note 193. 204 See INDIGENOUS & N. AFFAIRS CAN., 2015–16 DEPARTMENTAL PERFORMANCE REPORT 9 (2016), https://www.aadnc- aandc.gc.ca/eng/1466532403785/1466532431821. 205 Id. 284 ALBANY GOVERNMENT LAW REVIEW [Vol. 12 through development on unincorporated former provincial Crown land, and the Tsawwassen through treaty settlement that allowed for their own land use regulation.206 Regardless of the model selected, there are exceedingly strong opportunities for urban Indigenous communities in BC geographically proximate to valuable real estate or industry to break the legacy poverty traps of colonialism. Although interior groups may not see the same windfall as Indigenous groups in the Vancouver region, groups near resource projects, tourism, or retirement communities still have the capacity to transform their own socio-economic futures. Besides savvy use of bargaining leverage provided by favorable court decisions and proximity to land with high economic potential, the common denominator with the successful Indigenous groups discussed in this paper has been sound and competent leadership that has been able to maximize potential benefits on each of an economic, social, and self- governance level. Supporting the importance of good management has been the experience of other Vancouver region Indigenous groups that have not seen economic development projects and still experience socio- economic outcomes that are more reminiscent of less-developed countries, in some cases with the corruption to match, despite immediate geographical proximity to excellent jobs, schools, and health care.207 For instance, the ninety member , neighboring the wealthy suburban beach community of White Rock, experienced the revelation of its chief receiving a larger after-tax salary than any elected politician in Canada (some C$295,000, or the equivalent of a C$520,000 taxable salary).208 This is while much of the reserve lacks access to safe water,209 despite receiving millions in government grants and posting a C$2

206 See MUSQUEAM INDIAN BAND & PROVINCE OF B. C., supra note 154, at 12; INDIGENOUS & N. AFFAIRS CAN., supra note 179, at 1. 207 Andrea Hopkins, Backlash as Canada Reveals Big Salaries for Aboriginal Leaders, REUTERS (Aug. 1, 2014), https://ca.reuters.com/article/domesticNews/idCAKBN0G14SR20140801. 208 INDIGENOUS & N. AFFAIRS CAN., SEMIAHMOO FIRST NATION SCHEDULE OF REMUNERATION AND EXPENSES CHIEF AND COUNCILLORS 4 (2015), http://fnp- ppn.aandc- aadnc.gc.ca/fnp/main/search/DisplayBinaryData.aspx? BAND_NUMBER_FF=569&FY=2014- 2015&DOC=Schedule%20of%20Remuneration%20and%20Expenses &lang=eng. 209 Jesse Johnston, More Water Woes for B.C.’s Semiahmoo First Nation, CBC NEWS (Jul. 31, 2017), http://www. cbc.ca/news/canada/british- columbia/semiahmoo-first-nation-water-1.4227422. 2019] TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 285 million surplus in fiscal 2014.210 Fortunately, subpar management is a solvable problem. The models explained in this paper are instead far more limited in their application by two other factors: most of the country has settled treaties, and most of the Indigenous groups in the country are not proximate to land with significant potential economic value. Worth noting for urban Indigenous groups under historical treaties though, is that fee simple title has been powerfully leveraged by Vancouver region Indigenous groups. This Vancouver-area experience is a living case study for making fee simple a more viable option for those groups foreseeably subject in the long term to the substantial restrictions on alienation within the Indian Act.211 For the subset of Indigenous groups at the core of this paper that are not subject to these limitations however, the experiences of the Tsawwassen and the Musqueam are instructive of a new relationship made possible by the Supreme Court of Canada’s willingness to risk land tenure uncertainty in the pursuit of meaningful reconciliation.212 While in many instances law has a tenuous relationship to socio-economic outcomes, in a highly developed country such as Canada, and albeit with great difficulty and over a period of decades, law has been a catalyst for socio- economic development breakthroughs for certain underdeveloped groups well positioned to benefit from a transformational framework.

210 INDIGENOUS & N. AFFAIRS CAN., SEMIAHMOO FIRST NATION: CONSOLIDATED FINANCIAL STATEMENTS 8 (2015), http://fnp-ppn.aandc- aadnc.gc.ca/fnp/main/search/DisplayBinaryData.aspx?BAND_NUMBER_FF=56 9&FY=2014- 2015&DOC=Audited%20consolidated%20financial%20statements&lang=eng. 211 See INDIGENOUS & N. AFFAIRS CAN., DISCUSSION PAPER: MATRIMONIAL REAL PROPERTY ON RESERVE 22 (2002), https://www.aadnc- aandc.gc.ca/eng/1100100032571/1100100032573#ft64b. 212 See Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, para. 10 (Can.) (“The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982.”).