Is Crown offer to buy back stolen land fair to Akwesasne Mohawks?

The Mohawks of Akwesasne want their land back, and they should have it. It was unjustly taken from them more than a century ago when Canada prioritized settlement over honouring Aboriginal land title.

Since then, however, Canada’s legal framework has evolved and does allow for that land to simply be returned to the Mohawks.

In a settlement agreement decades in the making, the federal government has put an offer on the table that includes a payout and a promise of land.

Earlier this year, the federal government offered the Mohawk Council of Akwesasne $240 million to settle the specific claim for 8,000 hectares of lush farmland along the south shore of the St. Lawrence River.

In1888, the Crown paid the Akwesasne $50,000 for use of the land, which sits along the American border. The Akwesasne agreed to lease the land for use by Loyalist and European settlers, who were to leave in spring 1889. As hap- pened to Indigenous peoples across Canada in its infancy, the Akwesasne soon after found themselves without title to their land.

The Akwesasne call this disputed territory Tsi: karistisere, but for 387 current residents, the land is Dundee Township in southern Quebec. Therein lies the land use conundrum: Though the land was unjustly taken, negating all subsequent land rights in theory, there is no legal framework for a kicking out private property owners to make way for the Mohawk Council of Akwesasne to expand their reserve territory.

As non-Indigenous property owners, the current Dundee residents’ property rights are not constitutionally protected. Technically, residents could be expropriated by the federal government, but only for “public uses.” The Crown and courts have, so far, been unwilling to displace landowners to expand reserve territory in an effort to reconcile historical wrongs.

The Crown’s offer comes with an affirmation the land was never surrendered, but taken under dishonourable circumstances; it is rightfully Mohawk territory. Sometimes, an admission of wrongdoing is sufficient.

On Dec. 8, the Mohawks of Akwesasne will vote in a referendum to decide if the government’s offer of a payout and a promise will sufficiently reconcile the historical wrong. If Akwesasne band members vote yes in the referendum, they will release their historic claim to the land, receive the settlement money, and begin waiting for land to materialize.

The payout is intended for the Mo- hawk Council of Akwesasne to use in buying back land from Dundee residents, parcel by parcel, as it becomes available in a “willing buyer, willing seller” process. The land would then transfer to reserve land under Canada’s notoriously lagging and cumbersome Additions to Reserve policy.

This promise of land is not the same as having rights to the land. In ratifying the agreement, the Mohawk Council of Akwesasne will receive a payment and a promise, because that is all Canada’s laws are equipped to provide.

The settlement agreement would absolutely be a remedy to the Crown’s unjust acquisition of the lands.

It would help redistribute economic power and influence to the Mohawks, insofar as land rights are equated with economic opportunities for most Canadians. Indeed, access to land is a critical issue for many Indigenous communities.

What’s more, Indigenous connections to traditional territory is a relationship not replicated anywhere else in the common law.

It is a spiritual connection through which many Indigenous communities self-govern.

As courts continue to clarify what Indigenous land rights entail, the intersection of private property and Indigenous land claims will be a path to navigate with great care and attention to individual cases.