Resettling Musqueam Park
4
Resettling Musqueam Park
Property, Culture, and Difference in Glass v. Musqueam Indian Band
Reserve land worth half of market value
The Supreme Court of Canada assessed 40 acres of prime Vancouver real estate at half its market value yesterday solely because the leased land was located on an Indian reserve. A 5–4 majority said each leaseholder in the leafy residential neighbourhood near the University of British Columbia campus must pay the Musqueam Indian band about $10,000 annually—half the amount they would have paid without the political uncertainty and potential unrest of an Indian reserve. “This fact cannot be dismissed or ignored,” Mr. Justice Charles Gonthier wrote. “In the future, the market may respond differently. But when the market perceives uncertainty, it is cold comfort to the lessor to believe that the lessees’ fears are unwarranted.” Kerry-Lynne Findlay, a Musqueam leaseholder and spokesperson for the group of 73 elated leaseholders, said the decision is “a victory” for non-aboriginal people that will reverberate across the country. She estimated about 60,000 non-aboriginal people, mostly in Ontario, hold leases on land in Indian reserves [The Globe and Mail, November 2000].1
INTRODUCTION
Musqueam Park is an affluent residential subdivision nestled on forty acres of the Musqueam Indian Reserve 2 (IR2) in the city of Vancouver, British Columbia (BC). Comprised of comfortable single-family homes on leafy, oversized lots, Musqueam Park was for decades prized by residents for its central location and proximity to some of the city’s most beautiful green spaces. Yet in 1995, an intense struggle over land rents emerged between the Musqueam Indian Band and its non-indigenous tenants. Over the next five years, the resulting battle—in the courts, in the media, and in the public sphere—significantly reshaped the value, legal standing, and cultural meaning of Musqueam Park. In late 2000, the Supreme Court of Canada (SCC) handed down a split decision in Musqueam Indian Band v. Glass ([2000] 2 S.C.R.; hereafter Glass). In Glass, the court maintained that because of its sui generis character, “Indian land” was significantly less valuable than other privately-held forms of property and discounted leasehold rents owed to the Band by 50 percent.
In a recent volume, anthropologists Katherine Verdery and Caroline Humphrey (2004) advocate close attention to how various concepts of property operate in specific settings and to “what sort of work a property concept is doing when it seems to acquire new amplitude” (Humphrey and Verdery 2004:3). Following their lead, I look at how Musqueam Park is constituted as “Indian land” in the context of this dispute. How is its value legally constructed and publicly legitimated? How do characteristics originally ascribed to reserve land in the nineteenth century—inalienability, collective ownership, Aboriginal title—acquire a novel salience at the end of the twentieth? More specifically, by using the concept of landscape—as both a “physical space” and “a way of seeing” (Blomley 1998:568)—I explore how the value of Musqueam Park is constituted through a variety of discursive and material practices that reinscribe colonial property relations and help maintain settler access to Indian lands. In this chapter, I examine Musqueam Park’s historical emergence as a desirable residential area for almost exclusively non-indigenous homeowners and its shifting boundaries and inscriptions in light of the Musqueam attempt to collect higher rents. I argue that embedded in this political and legal dispute are a series of factors that further landscape Musqueam Park. These include the following:(1) how settler anxieties about shifting power dynamics between indigenous and settler societies, including concerns about changing structures of governance, access to land, and resource allocation, shape the discursive content of the dispute; (2) how the historical underdevelopment of reserves in general, and the Musqueam reserve in particular, sets the stage for contemporary battles over valuable residential property; and, (3) how colonial relations, especially in terms of property, continue to shape public and legal discourses in BC.
PROPERTY AND DIFFERENCE
In 1995, the Musqueam Indian Band, a First Nation with just over a thousand registered members and three urban reserves around Vancouver, sued a group of its tenants in federal court in an attempt to collect outstanding land rents. The tenants, more commonly known as leaseholders, were a group of seventy-three affluent non-Indian homeowners living in Musqueam Park.
While the leaseholders owned their homes and held ninety-nine-year leaseholds to Musqueam Park property, the Band maintained collective title to the underlying land. Originally negotiated in 1965 by the federal government on the Band’s behalf, the leases were part of a burgeoning movement to promote economic development on reserves and generate income for Band members. For the first thirty years of the leases, the leaseholders paid small fixed annual rents (approximately CAN$300-$400 per year). The leases specified, however, that in 1995 the method for calculating annual rents was to change. Rather than fixed rents, the Band and the leaseholders were directed to negotiate a “fair rent” based on six percent of the “current land value” of the property (Glass, 1).
Because of the (originally) advantageous lease terms, desirable location, and booming Vancouver housing market, land rents in Musqueam Park were set to increase by more than five thousand percent in 1995, jumping from $400 to approximately $36,000 per year. Panicked leaseholders argued that these increases would displace them from their homes and lead them to financial ruin. The Band countered that despite leaseholder claims to the contrary, the increases were legitimate, not only reflective of property values in the area, but also supported by common law real estate practice.
The proposed jump in rents was a substantial one, and leaseholders expressed understandable concerns about their financial well-being. Yet, what is of particular interest in this case is how the leaseholders asserted their claim to Musqueam Park and to discounted rents. The legal crux of the dispute rested on how properly to appraise the value of the land in order to calculate the new rents. The leaseholders argued that because of its status as “Indian land,” as land that was collectively owned, inalienable, and subject to Aboriginal title, Musqueam Park was not analogous to neighboring fee simple land, and consequently should not be appraised as such. The Band countered that common law practice supported its contention that “current land value” should reflect the price that the land would get if it were to be sold on the open market. In Glass, the Supreme Court upheld an earlier federal decision that argued that because of its location on reserve land, Musqueam Park properties should be appraised at fifty percent of the value of similarly situated fee simple land. Following the arguments of the original trial judge and the leaseholders, the SCC’s majority found that leasehold reserve land constituted not only a sui generis category of property, but also a less valuable one.
Between 1995 and 2000, the struggle over rents in Musqueam Park reverberated across Canada. Emerging at a time when many First Nations were battling for legal recognition of their rights to land, resources, and self-determination, issues involving indigenous peoples were perceived to be particularly threatening by many non-indigenous Canadians, especially in the province of BC. Leaseholders argued that they were victims not only of unscrupulous profiteering on the part of the Band, but also of reckless government policies willing to sacrifice the rights of “ordinary” citizens in a wrong-headed and discriminatory attempt to bring closure to the longstanding claims of indigenous peoples (Frank 2000). Debates about “fair rent” and “current land value” exceeded the boundaries of the courtroom, often becoming deeply racialized debates about what and who were fair and valuable.
Not only was the clash over Musqueam Park a high-profile dispute, revealing some of the cleavages extant in Canadian settler society, but it was also an important decision in Canadian law, marking a significant moment in indigenous legal history. During the past thirty years, many indigenous claims, both in legal and extra-legal spheres, have been articulated using an idiom of difference. The idiom of difference refers to self-conscious, explicitly cultural claims that emphasize the idea of epistemological distance between indigenous and settler cultures. Within this context, the notion of cultural difference has been particularly useful in pointing out assumptions embedded in ostensibly neutral institutions such as law and in revealing the power inequities inhering in them. Yet the idiom of difference takes on a novel role in Glass: an appeal to the legal relevance of indigenous difference was mobilized not by the Musqueam themselves, but rather by the leaseholders. Although not originally an indigenous rights case, legal discourse in Glass transformed it into one, creating a precedent that could have potentially profound effects for how reserve land is understood and valued in the future. In light of burgeoning non-indigenous populations on reserves and reservations across North America, I suggest that the court’s conception of the status of Indian land has the effect of a twenty-first century resettlement. While certainly not a straightforward reiteration of earlier colonial forms in the province, the resettlement of Musqueam Park bears some striking similarities to the circumstances surrounding colonization in BC in the late nineteenth and early twentieth centuries. These include clashes between settler and indigenous populations about legitimate access to land and its appropriate uses, the central role of law and legal idioms in the articulation of rights and property, and the contested role that indigenous peoples occupy (and are allowed to occupy) in capitalist enterprises.
In Glass, the Band articulated its claim in commensurable terms, in the capitalist idiom of Canadian property law, seeking legally to maximize its profit in Musqueam Park. In contrast to other First Nations’ claims in recent high-profile Supreme Court cases, the Musqueam did not go before the Court to seek legal recognition of their difference, but rather asked it to recognize their sameness before the law. Yet the leaseholders contended, and the Supreme Court ultimately agreed, that indigenous difference was a key part of “Indian land,” and thus fundamental to the legal resolution in Musqueam Park.
THE LANDSCAPE OF MUSQUEAM PARK
In his article, “Landscapes of Property,” cultural geographer Nicholas Blomley probes the relationship between space and power, asking how space, specifically property, is socially constituted especially in the context of struggle (1998). Asserting the importance of both the material and the representational in understanding property relations, he uses the metaphor of landscape to discuss ongoing clashes over gentrification in Vancouver’s marginalized Downtown Eastside.2 Blomley reminds us that landscapes “allow us to think through the material production of space, while recognizing the manner in which that space is visualized and represented” (1998:585). I extend these insights here to another Vancouver site in order to trace the spatial and historical emergence of Musqueam Park as a way to contextualize the SCC’s decision asserting that “Indian land” is less valuable than comparable property.
PROPERTY VALUES IN MUSQUEAM PARK
Not only were leaseholders protected from sharp increases in land rents during the first thirty years of the leases, but they also benefited from rising real estate values. In 1990, homes in Musqueam Park regularly sold for between $450,000 and $600,000, values that matched pace with the west side’s boom, and were comparable to nearby freehold properties (Armstrong 2000). Despite the impending changes to leasehold rent calculations, properties in Musqueam Park continued to sell strongly well into the early nineties, a factor likely attributable to a commonly held perception among leaseholders and potential buyers that rents would not increase substantially after 1995. In his study of leaseholder purchasing behavior between 1980 and 1998, Derek Armstrong contends: “Leaseholders in Musqueam Park treated their leaseholdings as if they were equity in the same sense that a freehold property would be. Leaseholders expected to be able to sell ‘their’ property and homes for amounts comparable to the market prices for freehold properties” (2000:2–3). Thus, during the first thirty years of the leases, Musqueam Park properties held something akin to freehold value, which, generated by the homes and the land, adhered almost exclusively to the leaseholders.
Prior to 1995, there was very little public concern expressed about the impending rent increase, despite the fact that it was common knowledge in the area (Constantineau 1990; Bruce Miller 2000:personal communication). In 1995, the mainstream media en masse began to report on the dispute in Musqueam Park. Many of the news stories and editorials focused on the uncertainty surrounding the dispute and its negative impact on property values.
Throughout 1999, public discussion of the dispute heightened. Mainstream media described the “drastic” and “sudden” nature of the rent increases, often downplaying or forgetting the very specific terms of the lease; they also rarely reported that the Band was negotiating a fixed lease rate for the next twenty years, again without any compensation for inflation or potential growth in land values. Instead, a series of alarmist editorials presented the Musqueam Band as conspiratorial, opportunistic, and avaricious.3
Missing from this description of Musqueam Park, however, is an account of how such a desirable and valuable residential space materialized on reserve land. In the following sections, I give a brief account of the emergence of Musqueam Park and discuss some of the racialized discourses surrounding the dispute in the context of the Supreme Court’s decision in Glass. I ask not only how the historical and spatial configuration of Musqueam Park links with legal encodings of property and value, but also how the historical underdevelopment of reserves in general, and the Musqueam reserve in particular, sets the stage for contemporary battles over valuable residential property.
“PROPERTY OF THE WHITE PEOPLE FOREVER”: RESERVES IN BRITISH COLUMBIA
The national mythologies of white settler societies are deeply spatialized stories. Although the spatial story that is told varies from one time to another, at each stage the story installs Europeans as entitled to the land, a claim codified in law [Razack 2002b:3].
Legal scholar Cheryl Harris has famously argued that “whiteness and property share a common premise—a conceptual nucleus—of a right to exclude” (1993:1714). Through an examination of the emergence of whiteness and the evolution of American property law in relation to the exclusion of Blacks and Native Americans from these spheres, Harris asserts that race and property are inextricably linked, contending that a privileged concept of whiteness comes to be “embedded … into the very definition of property” (1993:1721; see also Wolfe 2001). Thus “American law has a recognized property interest in whiteness,” one which creates unacknowledged conditions “against which legal disputes are framed, argued, and adjudicated” (Harris 1993:1714). I extend Harris’s insights to encompass Canadian law, arguing that “a property interest in whiteness” frames the Musqueam Park dispute, creating a nexus of symbolic and material conditions through which both the controversy and the Supreme Court’s decision are articulated.
Race profoundly structures Canadian law and society, yet there are discursive conditions which severely limit discussion of these issues (see e.g., Aylward 1999; Backhouse 1999). For instance, it is a longstanding myth, oft-reproduced in history textbooks, news media, and other sources, that Canada has been gentler with the indigenous peoples now encompassed by its boundaries than have other nation-states, most notably the US. While this myth has been debunked, or at the very least problematized, in academic and activist literatures, it is nevertheless prevalent in public discourse and still frames the reception of many First Nations’ claims.
In Canada, as in other postcolonial nations, the racial categories of white and Indian have been mutually constitutive; that is, these categories developed in tandem with each other. This has been the case historically and it is still the case now. There is a burgeoning literature in Canadian critical race theory that deals specifically with the racial construction of indigenous peoples, specifically the prevalent native/non-native dichotomy that is more familiar in Canadian race relations. As Carol Schick argues, “[T]he construction of white-identified people is established through the production of Aboriginal peoples as Other” (2002:105–106). Unlike the US, however, it is relatively rare in public discourse in Canada to speak overtly about race in reference to either indigenous peoples or whites; rather, “culture” is the preferred term used to evoke specific kinds of difference, often effacing the racialized (and gendered) dimensions of Canadian society, and thus limiting critical intervention in larger questions about racism and equality. Building on the work of earlier critical race theorists, Sherene Razack calls this process “culturalization,” arguing that in these circumstances “[c]ulture then becomes the framework used by white society to pre-empt both racism and sexism” (1998:60).
Concepts of race have a long history in British Columbia, and while these concepts have been by no means monolithic or necessarily coherent, they have been nevertheless consistently premised on settler assertions of difference from, and superiority to, indigenous peoples. At the time of early resettlement during the mid-nineteenth century, British colonial officials envisioned their westernmost colonies in racial terms by imagining them as white spaces, the creation of which would require the formation of sharp legal and spatial divisions between indigenous and white populations.
An oft-cited fact about BC’s racial history is that a series of treaties negotiated with indigenous peoples on Vancouver Island in the 1850s stated that the purchased land would become “property of the White people for ever” (Tennant 1990:xi). This assertion locates, in early colonial law, the desire for difference among white settler populations in BC, a desire intimately linked with notions of race and of property, and one which has been present throughout BC’s history. Paul Tennant points out that from the early days of resettlement until the postwar era, “Whites in the province were eager to distinguish themselves from non-Whites,” in part as a way of protecting their political and material interests (1990:xi). These distinctions were organized and expressed in a variety of ways, and they were especially manifest in the racial, spatial, and legal dimensions of property.4
Historical geographer Cole Harris makes the argument that nineteenth century white resettlement in BC coincides with some important shifts in the trajectory of British colonial thought, shifts which reformulated concepts of race and humanity, thus differently shaping the form and experience of colonization in western Canada. He points to the diminishing popularity of the liberal humanitarian tradition in the 1840s and 50s, a tradition which, although premised on the inferiority of indigenous peoples, still presumed a “universalistic vision of a common humanity” (2002:10). However, an increasing reliance on evolving “scientific” arguments about racial difference (specifically the racial immutability and inferiority of non-Europeans) slowly emerged and eroded this perception of a common humanity (Harris 2002:11). As these new racial concepts gained currency, colonial attitudes about indigenous peoples grew more negative. Further, throughout the colonized world, a growth in white immigrant populations was concurrent with a decline in indigenous ones, the latter having been subjected to the ravaging effects of often violent colonial policies and European diseases. This historical moment buttressed white settler beliefs both in the biological inferiority of indigenous peoples and in the idea that these peoples represented a dying race. Thus there was a pervasive colonial belief in the inferiority (and fundamental difference) of indigenous peoples, a belief that undergirded colonial law and policy especially in the realm of property.
Property was a central organizing metaphor for colonial ideology. Historically, private property was considered to be exclusive to Europeans, and it was widely believed that indigenous peoples either had a very primitive understanding of property, or had none at all. Colonizers justified the appropriation of indigenous territories by asserting that these lands were either uninhabited (terra nullius) or underused (Culhane 1998). As both Peter Fitzpatrick (2000) and Patricia Seed (2001) point out, even when confronted with contradictory evidence (i.e. indigenous agrarians), colonists either ignored this evidence or they reconstructed concepts and laws which continued to relegate indigenous peoples to lower forms, outside of political society and property. As historian Seed suggests:
Those taking others’ property needed to see a clearly defined boundary between themselves and the others to justify seizing assets belonging to those others. If the line dividing the two were indistinguishable, then the colonizer’s certainty about their right to seize resources might vanish, or at least become open to question (2001:116).
Thus concepts of private property themselves evolved in relation to these kinds of colonial encounters and the presumed inferiority of indigenous peoples. Echoes of these colonial encounters reverberate in the dispute over Musqueam Park. For instance, settler discourse has often relied on “higher use” arguments to justify appropriation of indigenous territories. Higher use claims have persisted in contemporary settler-indigenous conflicts over land and resources (Miller 1998). In the case of Musqueam Park, such claims are confounded by the Band’s attempts to put the land to its “highest use” by seeking maximum profit.
In her discussion of mixed-race identity in colonial British Columbia, sociologist Renisa Mawani (2002) suggests that late nineteenth century Canadian legal definitions of “Indian” were not simply a reflection of racial categories extant in settler society, but rather were also ways of protecting government interests in Indian land. She examines those late nineteenth and early twentieth century legal definitions of “Indian-ness” that relied on blood quantum, arguing that by restricting the ability of mixed-race people to assert indigenous claims to land, these definitions “linked blood with real property and citizenship” (2002:56). Mawani argues that because it increased the number of people who could claim Native ancestry, and thus the number of people who would have a right to reserve land under the preceding legal regime, the social phenomenon of “race-mixing in British Columbia potentially jeopardized European efforts to appropriate indigenous land” (2002:50). As a result, the federal government became progressively more restrictive in its legal definitions of who was and was not “Indian,” thus limiting the amount of land it was legally required to allocate for reserves. An important insight in Mawani’s work, then, is that colonial anxiety about mixed-race progeny cannot be construed as merely symbolic or metaphorical concerns about racial purity; rather, this anxiety was also deeply rooted in material concerns about land (see also Perry 2001). The racialized fear and anxiety expressed by the leaseholders and other settler Canadians during the Musqueam dispute are also deeply rooted in material concerns about land, concerns ultimately mitigated by the Supreme Court’s decision in Glass.
Although the Musqueam reserve itself was not created until 1870, the legal and political foundations of Musqueam Park were laid early, as early as the Royal Proclamation of 1763. In the Proclamation, the British Crown codified the concept of Indian title (now called Aboriginal title), distinguishing it from other types of property recognized in common law. Indian title differed in three important ways from the typical British fee simple title granted to white settlers, and these differences “sharply curtailed the freedom of the Indians to do as they wished with their lands” (Tennant 1990:11). First, Indian title would be held collectively as opposed to individually. Second, unlike fee simple land, Indian land could not be bought or sold on an open market; rather, it could only be transferred to the Crown for sale or negotiation. Finally, Indian title was recognized rather than created by the Crown, and was thus considered to be a codification of “aboriginal arrangements” predating European colonization (ibid.).