Lakeshore Advance Letter to the Editor

Dear Editor:

As a long time property owner at Ipperwash I would like to add some thoughts for consideration that I believe are applicable to the conflict. Social conflict can be defined by its five characteristics. First, conflict usually involves two parties. Second, both parties seem to want power over some one or something. Third, both parties want power over the same thing. Fourth, each party is aware that the other party wants the same thing and fifth, conflicts usually involve one or more of the following things a) a scarce resource, b) an incompatible position or c) opposing values. Conflict is a normal form of interaction between individuals/groups in society. In fact a healthy society is one in which cooperation, competition and conflict are in balance. The concern with conflict is the tendency of the participants to resort to violence as a short cut to settle them, and that means some degree of destruction of life and/or property.

The conflict at Ipperwash Beach is between the KPSP First Nation and the property owners (including the Municipality that owns the road allowances). The conflict seems to be focused on the metal barriers that regulate the use of the beach. Initially the barriers had been placed to satisfy the property owners’ concerns and rights resulting from rising lake levels at that time but their placement blocked the right of the KPSP First Nation to exercise their perceived right to use the beach as a conduit connecting the KP Reserve with the SP Reserve often referred to as the Army Camp (It is probable that the seasonal utilization of the entire west shore of Lake Huron by the First Nations people changed over time as a consequence of their subsistence economic activities.) This particular conflict seems to have begun forty or more years ago. On December 5th 2014 the on going conflict flared with the removal of the barriers by KPSP personnel. Thus the conflict seems to be a clash of incompatible positions over a scarce resource based upon different values placed on the use of the lakeshore and change. It seems that one group cannot have all that it wants because then the other group would get none of what it wants. The danger is: will violence be used to settle this conflict?

This conflict of “rights” is enhanced by the adoption by Canada of The Canada Act in 1982. The sections of the Canada Act that are most relevant are: Part II section 35 and the Charter of Rights and Freedoms Section 25 parts (a) and (b) (Google The Canada Act 1982). These sections of the Constitution guarantees Aboriginals of Canada their Treaty rights and their Aboriginal rights. There is a difference between Aboriginal and Treaty rights, which is important to the conflict at Ipperwash because the claim to a “trail” seems to be an Aboriginal rights claim. Until 1982 the only claims by Aboriginals that were acted upon by the Crown were those claims originating from the Treaties. In 1982 the Crown guaranteed Aboriginal rights as well.

The claim to the trail (can it be thought of as a right of way over the beach?) is based upon the historic activities of an Aboriginal society stretching back at least to the establishment of the two Reserves. Neither Treaty Number 29 nor any other legislation ceded or extinguished the right to a trail so it is considered to still exist. The nature of that “trail” is open to a degree of speculation. (Could its nature be an aspect of the negotiations?) The purpose of Treaty 29 was designed to open up the Huron Tract (Part of Upper Canada) to settlement as a protection against American invasion after the War of 1812 (Google Treaty 29 and read its history and terms)

All societies, both historic and contemporary, develop rules/traditions (laws) that enable them to meet their basic need to provide protection for their lives and their property. The Supreme Court of Canada is interpreting section 35 of the Constitution as a mandate to legitimize Aboriginal rights as part of Canada’s common law heritage (Google: Aboriginal Rights and Common Law. This will provide many web sites that will avail the researcher a glimpse of the legal cases upon which Aboriginal rights are being reconciled to the common law heritage of Canada.) Our legal heritage includes Quebec civil law and British Common law (a.k.a. case law) It is part of the legal system that enables us to end legal disputes (originated in England and was adopted by Canada). It is based on precedent (legal principals developed in earlier case law that are applied to contemporary cases and are constantly being modified to serve modern needs). The claim to the trail seems based upon Aboriginal common law. The claim by the property owners is based on the British common law heritage. The problem seems to be that the perceived rights (based upon the value systems of the two groups of how the beach should be regulated) seem incompatible with each other. This conflict will be difficult to reconcile so patience and communications are vital.

There is some concern about the actions of the police. (Google: A Framework For Police Preparedness For Aboriginal Critical Incidents or Google: Ipperwash Inquiry Recommendations re: ‘Peacekeeping’ Policy from volume 2 Policy Analysis #’s 38, 45, 47 and 49). These sources should clarify the “why” of the actions of the police forces on December 5th. Police are not judges or juries. Their role is to keep the peace. The act of removing the barriers is evidence of how a long standing grievances, if not dealt with quickly, can generate violence. (Could compensation form part of the final settlement?) and hence the need to quickly resolve this conflict.

It is up to the government (Google Sections 91 and 92 of the Canada Act 1982) in this incident the Provincial government to make sure that the rights of all Canadians are protected. The role of the police is to ensure that both parties to the conflict would be able to defend and or sort out together their rights before a proper authority – the government that has sovereignty in this issue. The government has the constitutional authority to regulate the rights of all Canadians. The Province of Ontario (Ministry of Aboriginal Affairs) has in fact developed a protocol for dealing with issues such as the issue at Ipperwash. (Google: Guide for Submitting Land Claims to Ontario that is used to deal with all Claims, both Aboriginal and Treaty claims). The Ipperwas Inquiry recommended the creation of a process such as this. The Province is rightly following its Constitutional obligations including Section 35 including the case law that has been generated by Section 35. It is addressing the issue of the “trail” claim. It seems they prefer a negotiated resolution by the parties in conflict. They wisely have included members of the Lambton Shores Council, a representative of CICA and representatives of KPSP First Nation. It is reasonable that it will take time to implement the protocol and it will require patience and calm by all the parties to this conflict.

Google: Addressing Aboriginal Land and Treaty Rights in Ontario: An Analysis of Past Policies and Options For the Future by Michael Coyle particularly Part II  The situation Today pages 24 – 33)  Mr Coyle testified at the Ipperwash Inquiry. In a partial summary he said that the objective of Section 35 of the Canada Act 1982 as promised by the Crown is to bring about a just settlement for Aboriginal Peoples executed in a purposeful way. Legal precedent based upon Section 35 makes it clear that a generous and liberal interpretation of Aboriginal claims will be made. In addition to Treaty rights Section 35 protects the rights to traditional Aboriginal activities on lands off-reserve even where the Treaties do not refer to such activities. These are activities integral to the distinctive culture of the Aboriginal societies and unless: a right was given up in the treaty, is incompatible with the sovereignty of the Crown or was eliminated by a federal law which showed a clear and plain intention to extinguish it, all rights which flow from the common law, are protected. The Crown promised to do this by maintaining intact the honour of the Crown when Aboriginal rights could be affected. (Google: Haida Nation vs British Columbia (Minister of Forest). Honour of the Crown means that it must legally consult with the Aboriginal group affected in an effort to accommodate its interests (the more significant the claim the more serious the consultation must be). The goal is to achieve a just reconciliation of the prior occupation of Canada by Aboriginal societies in return for the assertion of sovereignty over Canada by the Crown. The Crown reserves the right to infringe upon Aboriginal rights but only if the government has a valid purpose and only if it acts in a manner consistent with the honour of the Crown. If infringement occurs adequate compensation must be made. As well, Aboriginal communities must prove claim of a right on a case-by-case basis. ( Google: R vs Sparrow).

The conflict at Ipperwash seems highly prone to violence for a number of reasons. It appears to be more non-realistic than realistic, more disorganized than organized, more personal than impersonal more unstable than stable. Some steps have been taken already to lessen the outbreak of violence. The Provincial take over of negotiation is helping to stabilize the conflict and further stability can be gained if everyone allows enough time for the protocol to work. Becoming more informed would focus the real issues of the conflict and help to make the conflict less confusing which would help avoid violence. Certainly being willing and prepared to seek reconciliation and/or compromise by the parties to this conflict would lessen the chance of violence as well. Those who are writing letters to the editor on this topic need to examine carefully statements and be sure they are accurate if they wish to avoid inflaming the conflict. Those involved in the negotiations need to understand the urgency of reaching a resolution because when the ice goes out there will be ample opportunities for confrontation.

Violence begets violence and violence cannot be tolerated. Threats, sanctions (boycotts, blockades) and the application of force are destructive to life, property and the human spirit no matter who engages in these actions.  This conflict is long standing. No one should need to be reminded of the tragedy that occurred in 1995. One life was lost, people were injured, the community was divided, property was destroyed and the Park has been closed for nearly twenty years, greatly negatively affecting the economic well being of all in the area. The area needs no more violence.

There is hope for a non-violent solution. West Ipperwash, the municipality  and KPSP managed to agree to a compromise. Probably not everyone likes it but it seems preferable to most of them compared to the alternative(s). Although the Centre Ipperwash situation is different how willing are both sides to sit down and seriously see the issue realistically and from each other’s perspective? Are both sides correct in their facts? Are both imagining or ascribing false motives to each other? Have both sides already concluded that they cannot move from their stated positions? Have both sides got the imagination to define a compromise? Failing that can the two sides suggest and accept some one whom they both trust to listen to each other’s positions and propose a solution. Maybe neither side will get all of what it wants but maybe each can get some of what it wants in the interest of avoiding violence. Conflict can be a positive form of interaction. It could result in a win win outcome.

Respectfully Yours

Eric Shafer
(Also a property owner at Ipperwash)

via Letter to the Editor of the Lakeshore Advance

 

I would like to draw your attention to an error of interpretation in my letter to the editor that was published in the March 5, 2015th  edition concerning:  “Conflict At Ipperwash Beach”.

My concern occurs in paragraph 4 in which I stated: “ Neither Treaty Number 29 nor any other legislation ceded or extinguished the right to a “trail” so it is considered to still exist.”  Treaty 29 states that “ …. hereby surrendered and yielded up to Our Sovereign Lord  the King, His Heirs, and successors, together with all and every of the woods and underwoods, ways , waters, waterways, improvements, profits, commodities, hereditaments and appurtenances on the said tract of land (saving and excepting the reserved tracts aforesaid) …..”  I understand that  the term “ways” refers to a “trail” If correct then Treaty 29 would seem to have extinguished the right to any  and all “trails” in existence at the signing of Treaty 29.

I would appreciate your publishing this clarification. I regret any misunderstanding that this may have created.

Sincerely Yours

Eric Shafer.

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