Vancouver's Oppenheimer Park protest raises question of aboriginal title to urban centres

When Vancouver police served an eviction notice to a small group of homeless people camping in a downtown park recently, the protesters responded with some paperwork of their own.

They served an eviction notice on the City of Vancouver, stating Oppenheimer Park is on unceded aboriginal land — and that no one could make them leave.

• First Nations members issue eviction notice to City of Vancouver

The protesters' eviction notice was no finely tuned legal document, but it does raise thorny questions of law. Are parks and other lands commonly recognized as "city property" really subject to assertions of aboriginal title? And, who has the authority to make such claims?

The protesters, who built a fire pit and erected a dozen tents in the park, cite the recent Supreme Court of Canada decision in the William case as bolstering their cause. 

That case involved land in B.C.'s interior, hundreds of kilometres away from Vancouver. The highest court in the land determined the Tsilhqot'in Nation have aboriginal title over a large swath of their traditional territory — the first time the Supreme Court of Canada has recognized aboriginal title to a specific tract of land.

While First Nations leaders hail the decision as a "game-changer," protesters at Oppenheimer Park are now forcing many to consider how the case applies in a highly developed urban centre.

"This is unceded land. Nobody asked my permission, as a Musqueam member, to be here. Nobody asked any of my ancestors," said Audrey Siegl, who was at the park to show her support for the protest. "We've been forced into a corner of the city, and now we have to fight to assert our right to use it."

Siegl says many of the homeless campers are aboriginal and have nowhere else to go.

Vancouver 'founded' on traditional aboriginal territories

There's little debate that Vancouver sits on unceded aboriginal land. Village sites of the Musqueam, Squamish and Tsleil-Waututh peoples once dotted the beaches and coastline of what is now known as downtown Vancouver. 

City council formally acknowledged this last month, when it unanimously passed a motion stating "the modern city of Vancouver was founded on the traditional territories of the Musqueam, Squamish and Tsleil-Waututh First Nations… these territories were never ceded through treaty, war, or surrender."

While the group asserting title at Oppenheimer Park includes a Musqueam band member, a lawyer who acts for the Musqueam First Nation raised questions about the ability of individual members to assert aboriginal title.

"Aboriginal title is a collective right, not something that can be exercised by an individual," said Maria Morellato, who specializes in aboriginal rights litigation. "When it comes to issuing eviction notices, are they really authorized by the First Nation?"

Morellato said aboriginal "collectives" choose leadership, whether that be traditional governance models or the Indian Act band council system. Though it is possible the collective could authorize individuals to assert aboriginal title, said Morellato, those governance processes need to be respected.

In 2013, in Behn v. Moulton Contracting Ltd., the Supreme Court denied a claim of a family asserting that a logging license was interfering with their aboriginal right to trap. In that case, the court said the Behn family had no authorization from the Fort Nelson First Nation.

Morellato declined to say which Vancouver properties the Musqueam First Nation has collectively laid claim to, but emphasized the band has never attempted to oust private landholders — rather, the band had made government-owned land its priority.

"Musqueam has taken a strategic and incremental approach to repatriating title lands. That means negotiating with governments for Crown-held land," said Morellato. She added a First Nation may choose not to have aboriginal title lands returned, but that doesn't stop them from seeking compensation for loss of use.

Claims on landmark sites

"Crown-held land" in a city could include city parks or land upon which federal or provincial government offices sit. In Vancouver, notable government-owned properties include the Jericho Lands where the Department of National Defence operates a base, the recently closed Coast Guard base in Kitsilano and the venerable Canada Post building on Georgia Street.

Musqueam filed a legal claim to its traditional territory in 2003, which includes the city of Vancouver and Richmond, but that action is essentially on hold. 

Since then, it has asserted ownership rights in several landmark sites in the Lower Mainland, such as the golf course at the University of British Columbia and a sizeable parcel of green space and farmland in Richmond known as Garden City.

On Monday, a delegation from Musqueam band council visited Oppenheimer Park. Musqueam's traditional speaker, Shane Pointe, asked the protesters to follow Musqueam protocols, and not draw the band into the conflict.

"What you're doing is good. It's a noble cause," Pointe told the group. "But while you're here within our territory, it's not appropriate for anyone to use Musqueam to further their cause within our territory."

The elected chief of Musqueam, Wayne Sparrow, elaborated. "If there's issues with land disputes, we'll be handling them with the federal and provincial governments and the City of Vancouver."

The Squamish and Tsleil-Waututh Nations have also distanced themselves from the protesters.

However, Ed John of the First Nations Summit said it should be no surprise groups of First Nations people are asserting aboriginal title. 

"People are impatient. People want to move and protect lands, whether it's a park or a pipeline," said John. "It's not surprising that First Nations people would get on the land and say, 'This is our land.' Technically, they're right... but aboriginal title is a collective interest."

Chiefs across British Columbia will be devising strategy in the wake of the William decision when they meet at the Musqueam First Nation in August. Those discussions will pave the way for a summit between chiefs and B.C. Premier Christy Clark set to take place in September.

Meanwhile, the homelessness protesters in Oppenheimer Park met with a group of city councillors on Tuesday, asking for a speedy commitment to subsidized housing. They vow to continue their protest.