Land-use planning in Canada: whose land is it anyway?

Urban planning: pragmatic and necessary

Urban planning plays an important social role in Canada, despite being perceived by many as an irritant (why can’t I do what I want with my property?). Real-estate and land are immovable, so there can be no straightforward market; it is impossible to privatise all land (unless we accept that there be no public realm)…

Therefore, a regulatory framework that attempts to balance competing real-estate interests and to make space for the common good is necessary.

So, at one level – at the level of pragmatic city management and design – planners can be confident that their profession plays an important and essentially constructive role. I believe in this role (which, of course, can always be debated and perfected!) – that is why I am a planner.

Urban planning: an (unwitting?) instrument of colonialism

In Canada, however, there exists another level, one that is easy to forget in the day-to-day bustle of pragmatic land-use planning: that of fundamental principles governing land ownership and occupation.

This short book is available on line. It is a must-read for anyone interested in the issues rapidly raised in this post. Can be found at: https://fpse.ca/sites/default/files/news_files/Decolonization%20Handbook.pdf

Canadian planning and real-estate law rests on the fundamental assumption of crown sovereignty over all land. Ownership of land, i.e. freehold, is granted by the crown. It can be revoked – as often happens when, under planning law, compulsory purchase is mandated. If land is vacated and/or if no owner can be identified, it reverts to the Crown. Indeed, it is under this principle that planning law can re-organise, augment, or limit the rights of freeholders: freeholders – i.e. land owners – own their land at the sufferance of the Crown. The very idea of land ‘ownership’ is a western conceit imported to the New World.

All this is fine provided one accepts that the Crown actually has such underlying title. In Canada this is far from evident. The Crown as ultimate owner of Canadian land results from the legal fiction that Canada was empty before it was ‘discovered’ by Europeans, i.e. from the doctrine of discovery.

Under this doctrine, indigenous peoples have certain claims over land, but these claims are ultimately resolved by the Crown and by the colonial legal system implemented under it, which extinguished all pre-existing rights. In other words, this doctrine assumes away pre-colonial social systems and cultures, whilst graciously making some minor concessions to the inconvenient peoples already there.

The fact that certain treaties were signed, ostensibly ceding indigenous lands to Canada’s colonial powers, is important but should not distract us.

It is evident that the treaties’ wording – in English, a language foreign to the indigenous signatories – does not reflect a common understanding of what was agreed. These documents have been useful (to colonists) in framing much of the subsequent land debate within the confines of Western legal principles, the very principles of colonialism!

The British colonial government’s approach to the treaties was schizophrenic. By signing, British authorities appeared to recognize the nationhood of Aboriginal peoples and their equality as nations. But they also expected First Nations to acknowledge the authority of the monarch and, increasingly, to cede large tracts of land to British control […]

…The Aboriginal view of the treaties was very different. They believed what the king’s men told them […]. They were angered and dismayed to discover later that what had been pledged in words, leader to leader, was not recorded accurately […]. They had no notion of giving up land, a concept foreign to Aboriginal cultures.

Royal Commission on Aboriginal Peoples, 1996, People to People, Nation to Nation (Highlights from Report), Canada Communication Group: Ottawa, p9

And this only concerns ceded land! Much land has not been ceded (i.e. is not subject to a treaty, however questionable), yet is now deemed to be Crown land and/or is being used by institutions (such as McGill University), businesses and public space in Canadian cities.

All this land is subject to planning processes, rules and principles that urban planners develop and implement.

Is this relevant to 21st century planners?

The legal basis of land ownership in Canada may seem light-years away from the important pragmatic work of planning, such as drawing up strategic plans, improving mobility in cities, and ensuring the best use for key pieces of real-estate.

Yet the provincial urban planning acts which urban planners work to implement (or alter), the consultation processes we set up, and the strategic plans we lay out, all are instruments that derive from the same Western legal principles that serve to codify Canada’s colonial occupation.

Like it or not, urban planners in Canada are part of the apparatus that perpetuates the idea that the Crown, not indigenous peoples, is the ultimate owner of, and authority over, all land in Canada. Like it or not, at least some of the land we are planning for may not really be ours to plan.

Canada Day: an opportunity to ponder whose land we are planning

My purpose in this post is not to brow-beat Canadian urban planners (of which I am one): much the same argument could be made for civil servants, for lawyers, for mining corporations, and for many other professions. The purpose is to make us all a little more aware of the role we may unwittingly be playing in a system that has yet to come to terms with its original sins.

On Canada Day, and in light of the terrible confirmation – if confirmation were needed – of the genocidal crimes committed in residential schools, it is important for urban planners to consider what role they can play in the slow and protracted shift towards justice and reconciliation.

A first step in that direction, at least for me, is to try to understand the deeper structures of the system within which I work, and to ask myself : whose land is it anyway?

I invite you to read this short book, edited by Peter MacFarlane and Nicole Schabus, which is a far better primer on these issues than my blog.

Published by Richard Shearmur

I am a professor at McGill's School of Urban Planning. I perform research on innovation, on how we locate work activities (in a world where people often work from many places), and on urban and regional economic geography. I used to work in real-estate, and teach a course on this. I am an urban planner, member of the Ordre des Urbanistes du Québec and of the Canadian institute of Planners.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: