TWO MODELS FOR INDIGENOUS LAND DEVELOPMENT OUTSIDE OF VANCOUVER, BRITISH COLUMBIA 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 Canada. 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 Calgary, 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; First Nations 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 Tsawwassen 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.