Understanding Indian Reserves

The ongoing Idle no More campaign has thrust Aboriginal issues back into the spotlight in Canadian politics. Much of the public and media attention has focused on the Indian Act reserve system, and the role it is seen to play in many of the social and economic issues facing most First Nations in Canada.  Media have referred to Indian reserves as everything from "incubators of misery" to "tax-free havens". 

Proposals have ranged from support for the Harper government's proposal to introduce private property rights on reserve, to abolishing the reserve system outright.  Yet much misinformation seems to surround the Indian reserve system and how it works, making it difficult to make sense of the debate. 

While it is hard to generalize, the truth is that most Indian reserves are neither third world enclaves nor a tax-exempt wonderland where people live well on the government dime.  They are communities, where people live, die, grow up and raise families.  They are often impoverished communities with grave social challenges, but for many Aboriginal Canadians, they are home.

In fact, Canada's Indian reserves are home to over 400,000 people, 98% of whom are status Indians.  The majority of status Indians reside on-reserve, although when including non-status Indians, the majority of First Nations people reside off-reserve.  Yet for many off-reserve First Nations people, the reserve is a place they often return to for events, ceremony, or to visit friends and family.  Reserve communities remain important to Aboriginal culture.  First Nations languages remain much more widely spoken on-reserve than they are off-reserve.


Collectively, Canada's 2600+ reserves make up over 26,000 square kilometres, or just over a quarter of one percent of Canada's land base, for an average size of about 10 square kilometres.  Unlike the United States, where most reserves are large, contiguous parts of land which often sustain their own internal economies, Canada's reserves tend to be small and fragmented, which creates its own economic and social challenges.


Some reserves are located on the sites of former villages or camps, or in the proximity of hunting grounds, burial grounds or sacred sites.  However, many were simply a result of programs of forced relocation or centralization: the most convenient or inexpensive piece of land the government could find to house Indians where they wouldn't interfere with non-Native settlement or resource development.  Indian reserves were meant to be a temporary expedient: it was generally felt that Indians would get an education, buy property, join the military, marry out, or pursue another path that would cause them to lose their Indian status and become fully assimilated members of Canadian society, and/or that they would simply cease to exist. 

Yet after so many generations, Indian reserves persist, and in many cases the location of these reserve communities has come to have some meaning to the people who live there.  And as time has passed, some reserves have also become economically attractive, although rarely by design.  Cities have grown and previously remote lands have become more valuable.  Resource projects have sprung up on or around reserve lands, providing opportunities for resource revenues or job creation.  Or land lost has been reclaimed through specific or comprehensive claims processes, sometimes in valuable locations.

Reserve communities face a variety of challenges.  Incomes are far lower than the Canadian average, and many reserves are plagued by social ills including alcoholism, drug use, and violence.  While the root causes of these issues are complex, some have called for the reserve system itself to be abolished, and for First Nations to be relocated to less remote locations to "start over".

This solution ignores many of the root causes of on-reserve poverty and social problems.   It also ignores the reality that while off-reserve First Nations people tend to fare somewhat better economically than on-reserve, they still generally do poorly compared to the Canadian population as a whole.  Many Natives leave the supposed poverty trap of reserve life only to find themselves in some of Canada's worst urban ghettoes.  Solving the social ills plaguing Canada's Aboriginal population is not simply a matter of relocating them to urban areas.

The Harper government's solution has been to push private property on-reserve.  Their view, which is shared by some conservative think-tanks, academics and First Nations leaders, is that creating private property rights will unlock economic potential and bring prosperity to reserve communities.

However, the fact is that that private property interests already exist, in one form or another, on many  reserves.  Bands have the ability to grant certificates of possession (CP's) which give band members the right to sole possession of a lot on reserve.  CP's can be sold, transferred or willed to other band members, and can be mortgaged.  CP holders can even lease their land to others.  The only appreciable way in which it differs from fee simple ownership is the fact that it can't be transferred to non-members.

Bands can also designate lands on-reserve for leasing to third parties, including non-Natives, usually by way of long-term lease, which can also be mortgaged.  A great deal of economic development on-reserve has been enabled by designation.  

One of the controversies with Bill C-45 is that it made the designation process easier by watering down the community approval process for designation.  In doing so, it eliminated many of the democratic safeguards that would require designation of land to have a reasonable degree of support in the community.  And while the details are still scant, the Harper government apparently plans to go further with private property rights on reserve, likely making it easier to transfer reserve lands to non-natives.

Much of the backlash of the Idle no More movement is directed at the agenda of privatization of reserve land.  The backlash is understandable.  While some First Nations have had success with designating land for leasing, this has generally been those reserves closest to urban areas.  This is not a panacea that is going to work for many remote or rural First Nations.

Further, given the existing small size of the reserve base, many First Nations struggle to find enough land to house their people.  They simply do not have available land to lease or to grant to private interests.  In addition, having endured government policy that resulted in the expropriation (often forced, often without compensation) of most of their land, First Nations are understandably reluctant to give up any remaining land.  Some First Nations have already lost control of their land base through the indiscriminate granting of CP's and leases as well, which makes them leery of creating more private property interests.  They are also familiar with the experience of the Dawes Act in the US, which broke up reserves and resulted in large transfers of land from Indian Tribes.


The privatization agenda also ignores another reality: in Canada, a significant amount of economic activity takes place on publicly-owned land.  Simply privatizing your land base does not open the road to prosperity.  In fact, those provinces with the highest percentage of private land (such as PEI, Nova Scotia and New Brunswick) tend to be the poorest, while many of those with highest amount of public land (Alberta, BC and Ontario) are generally the most prosperous.

This is not to say that private property is not important to economic development, nor is it entirely anathema to First Nations culture.  At the time of European contact, First Nations generally had sophisticated systems of land management that included a mix of rights and responsibilities vested in individuals, families and broader communities.  Like any land system, First Nations recognized a mix of community and individual rights.

The issue is more that the land base that First Nations control is already too small to allow for healthy and prosperous communities.  And further fragmentation of an already small land base is not going to address the problem, it will actually exacerbate it.  To succeed, First Nations need a larger land base, which can support an appropriate mix of private and public property.  In fact, this has already been done with some success through modern self-government agreements or land claims settlements such as those with the James Bay Cree, Nisga'a, and Tswassen First Nations.


Any solution to the problems facing the reserve system must take history into account.  Trying to create better social and economic opportunities is a vital objective.  However, the solution can't simply be another forced relocation or centralization program: any choice to relocate First Nations communities must be voluntary.  Further, any solution must take into account the cultural dimension: if there is anything that First Nations have proven after 500 years of contact, it is the resilience of their cultures.

The solution must also not result in further fragmentation and loss of the land base: if we want First Nations land to provide a base for prosperity, then they need an adequate land base, and an appropriate mix of publicly and privately owned land.  In my view, the best way to achieve these is and the related aims of improving governance and building viable communities and economies is to expedite the comprehensive and specific claims processes in order to restore more lands to First Nations control, while providing for governance mechanisms with the authority and functionality to manage the land successfully. With adequate land, revenues and governance tools, First Nations would be in a better position to build healthy prosperous communities, and can take their rightful place as full partners in Confederation.

Understanding Idle No More

While in Ottawa last week, I had the opportunity to visit Victoria Island, where Chief Theresa Spence is staging a hunger strike, requesting a meeting between Aboriginal leaders, Prime Minister Harper, the Governor General, and the Premier of Ontario, in order to discuss First Nations concerns regarding their treaty relationship with Canada and the Provinces.  Chief Spence is the Chief of Attawapiskat First Nation, a First Nations community in Northern Ontario that has faced more than its share of hardship, and which has become emblematic of the stark social and economic conditions facing most First Nations communities in Canada.

I did not meet Chief Spence, but I did meet some of her supporters.  I also snapped the following picture from the campsite, across the river, of the Peace Tower and the Parliament Buildings.  

Prime Minister Harper and Chief Spence could very likely see each other across the Ottawa river, yet the reality of their respective positions could not seem to be farther apart.

Chief Spence's hunger strike is just one face of the larger Idle No More movement, a campaign which has burst into the national spotlight over the past few weeks.   What started as a series of teach-ins in Saskatchewan has quickly grown into a national (and even international) protest movement, which has included marches, rallies, flash mob drum circles in shopping centres, and blockades.  Key to the campaign has been the use of social media (with the hashtag #idlenomore) to organize protest activities and to raise awareness.  The campaign has used their website to publish a manifesto and to issue calls to action.

The catalyst for the movement seems to have been the Harper government's recent omnibus budget Bill C-45.  While the bill raises democratic concerns for all Canadians (which I discussed in an earlier post), it contains some legislative changes which are of particular concern to First Nations, among others.

First, the Bill reduced the number of rivers and lakes protected under the Navigable Waters Protection Act,from 2.5 million to 159.  Coupled with changes to other environmental legislation in the previous omnibus budget Bill C-38, this threatens to seriously undermine the environmental protection of Canada's lakes and waterways.  First Nations are particularly concerned about the impact on the environment, and their treaty and Aboriginal rights to hunt and fish.

Second, C-45 makes further changes to the Fisheries Act, which was amended by Bill C-38. Of particular concern is the fact that the Act now defines "Aboriginal fisheries" as being "social and ceremonial" only.  Since Canadian courts have recognized that Aboriginal fisheries include commercial fishing rights, this is seen as a unilateral attempt to limit constitutionally protected Aboriginal fishing rights.

Third, the Act amended the Indian Act to make it easier for First Nations to designate or surrender portions of their reserve land to the Crown for leasing to outside interests.  While this was ostensibily to faciliate on-reserve economic development, it raises the risk that a poorly attended community meeting could result in a small number of band members approving a designation with potentially huge impacts.

However, First Nations are even more concerned that these changes seem to be part of a larger legislative agenda of the Harper government, one which is targeted specifically at First Nations.  The government has as many as 14 pieces of First Nations-specific legislation currently in various stages of the legislative process.  This includes legislation currently before Parliament, such as the First Nations Elections Act, the First Nations Accountability Act, a bill on Matrimonial Property Rights on reserve, and a bill proposing to amend and ultimately replace the Indian Act.  It also includes proposed legislation on private property rights on reserve and First Nations education.

The substantive concerns with this legislation vary, and will have to be addressed in future posts.  However, in each case, one overriding concern is that the government is making sweeping legislative changes affecting First Nations without proper consultation.

Canadian law requires the government to consult with First Nations when taking action which is likely to impact on the Aboriginal and Treaty rights of First Nations.   Yet most of this legislation, which does just that, has been or is being prepared with little or no consultation.  It is this larger, unilateral attempt to re-write Canada's laws on First Nations, without any meaningful discussion with First Nations people themselves, that has so angered the grassroots and inspired the Idle No More campaign.

There has been no shortage of criticism of the Idle No More movement from mainstream media, ranging from it "lacking detail" in its demands, to some media personalities essentially accusing Chief Spence of an act of terrorism for undertaking a hunger strike.Others have deflected the criticism by suggesting that First Nations leaders need to take more responsibility for the plight of their communities. 

That criticism seems reasonable on its face, but ignores a few basic facts.  First, it fails to address just how monumental the economic and social problems faced by First Nations are.  While these problems are beyond the scope of this post, they are largely a legacy of past (and even present) attempts to assimilate Aboriginal peoples, from the creation of the reserve system to residential schools and beyond.  Second, it ignores the fact that the federal government has essentially created a system in which Indian Act Chief and Council are primarily accountable to the bureaucrats at Indian Affairs, and not the communities they are supposed to represent. Further attempts at assimilation and more "accountability" to bureaucrats are not going to fix the problems they helped create in the first place.   These problems are going to require dialogue and co-operation between the treaty partners in order to solve.

More fundamentally, this criticism seems to have missed the point of the Idle No More movement.  The founders of the movement have actually taken steps to distance themselves from the Chiefs, and the movement seems to be as much a criticism of some leaders within Canada's First Nations as it is a criticism of government policy.  The sentiment seems to be that too many Aboriginal leaders have been idle in the face of government policy which erodes and undermines Aboriginal rights.

Idle No More will need to address the challenge faced by all grassroots protest movements: how to translate popular concerns and protest activity into meaningful changes and solutions which will actually improve the lives of First Nations citizens.  Idle No More will have to learn from the path of the Occupy Movement, another grassroots movement which sought to empower people, but ultimately seemed unable to translate legitimate concerns about a broken system into a meaningful programme of action, and as a result appears to have failed to achieve much in the way of lasting change.

In the meantime, regardless of the Idle no More movement's direction and demands, it is clear that one demand is not being met: the Governor General had made it clear he will not meet with the Chief, and from the Prime Minister's office, continued stony silence.

Crosswalk Safety: Better Enforcement

Given some of my posts on the need for improved crosswalk safety, I was concerned to hear the recent statement by the Halifax Regional police that, despite a spate of recent crosswalk fatalities and injuries, they do not plan to increase enforcement of crosswalk violations, but will focus instead on educating the public.  It was even more concerned by the statement by Toronto police that the answer to crosswalk accidents is for pedestrians to wear lighter clothes.  This was recently echoed by one Chronicle Herald columnist.

Public education must go hand in hand with enforcement. In order to be effective, laws must be both well understood and well enforced.  The two are mutually reinforcing.  Enforcement without education is unfair, because people cannot reasonably be expected to follow laws they are not aware of or do not understand.   And education without enforcement is somewhat toothless: some people will ignore laws unless they are held to account for breaking them.

I've had more than one person suggest to me that crosswalk safety is merely a matter of common sense and personal responsibility.  Pedestrians know they are at risk, and so they should take every precaution, including wearing lighter clothes.  That certainly seems to be the view of some people within the police department.

I agree that common sense should prevail, and that all users of the road should act with a regard for their safety and that of others.  Pedestrians should look both ways before crossing the road, and should make sure drivers see them and have time to stop.  The fact you had the right of way will matter very little if you are seriously hurt or even killed.

Similarly, drivers need to be exercise caution when approaching all intersections, and be on the lookout for pedestrians waiting to cross as well as those already in the crosswalk.  It is sometimes difficult for pedestrians to tell whether drivers have seen them and intend to stop, so it helps if drivers make eye contact with pedestrians and make clear they have seen them.

A little courtesy doesn't hurt either.  As a pedestrian, I always try and acknowledge drivers that do stop with a friendly wave.

So I agree that Crosswalk safety starts with personal responsibility.  However, as recent events demonstrate, when people are breaking the law and endangering public safety, it doesn't end with personal responsibility.  All the common sense in the world won't save you from other people's lack thereof.  That is why we have laws. 

To that point, I was recently out for a walk with my one year old son, pushing him in his stroller.  We came to a marked crosswalk across a two-lane street near our house.  I looked both ways, and there was no traffic coming in either direction, so we started across the crosswalk.  We were almost halfway across, about to enter the far lane, when a car came speeding around the nearest corner, headed towards us on the far side of the road.  I could see the driver was not going to stop, so I did.  She flew past us about a foot away without even a glance in our direction.  We had been well into the crosswalk when she turned the corner, so I don't know if she simply didn't see us (I'm a big guy, and the weather was good) or if she simply didn't care.  I'm not sure which is more frightening.  I was a little shaken up and didn't get the woman's plates to report her.  I should have.

Had we been a foot further into the road, she would have hit my son in his stroller.  And although I'd exercised common sense and personal responsibility, that would not have mattered had by son been run over.

Where other people fail to exercise common sense and personal responsibility, we need laws to hold them accountable.  But laws only work if they are enforced.

Yet it seems that in Halifax and elsewhere, crosswalk laws are rarely enforced unless someone gets hurt or killed.  It is apparently uncommon for police to ticket either pedestrians or drivers for crosswalk violations unless someone gets hit. And the police seem to have little appetite for an actual enforcement campaign.

Of course, laws can't be enforced unless the police know they are being broken.  I'd encourage users of the road to report crosswalk violations when they see them.  I've certainly heard stories of the police citing people for crosswalk violations based on citizen reports.

Reporting more incidents will also give police more accurate info on just how serious the crosswalk safety problem is.  To that end, I am glad to hear that Halifax police may be getting a traffic accident mapping tool that enables them to identify hot spots.  Of course, the tool will only be truly effective if they then take out their ticket pads and target those hot spots with targeted enforcement campaigns.

At the end of the day, while education is important, better enforcement can serve an educational function as well, a high profile campaign of enforcement can itself be a very effective form of education, reminding both motorists and pedestrians of their responsibilities to themselves and to each other.

Urban Development: Does Halifax need to Grow Up?

It has become painfully obvious to many if not most observers that Halifax has a sprawl problem.  The Halifax Regional Municipality covers an area almost the size of Prince Edward Island, and the city seem to be spreading out rapidly to fill those borders.  The Halifax Regional Municipality has been experiencing significant population growth in its suburbs, while population in the downtown cores of Halifax and Dartmouth continues to stagnate.

The sheer size of the HRM makes our population density unusually low, at 71 persons per square kilometer.  However, even when we look at urban areas of HRM alone, the density is 1106.4 people per square kilometre, which is still significantly lower than comparable cities like Kitchener-Waterloo, London (Ontario) and Regina, slightly less than Victoria, and far below densities of comparable great worldwide.  If Halifax aspires to be a great city, then we need to start thinking like a great city, and growing in a more focused, sustainable way.

HRM's Regional Plan, which is supposed to set the framework for sustainable growth in the HRM for the next 25 years, adopted a target that 25% of population growth should take place in the urban core (essentially Halifax, Dartmouth and Bedford) while 50% should take place in the suburbs, and 25% in rural areas.  While some would argue that set the bar too low for urban growth, in the first five years of the plan we fell short of even that modest goal, with only 16% of population growth taking place in the urban core, while 56% took place in the suburbs and 28% in rural areas.  In other words, the city is expanding into the surrounding countryside at a rate that is not meeting even a modest target for sustainable growth.  This makes Halifax a textbook example of sprawl.

What is sprawl and why is it undesirable?

Sprawl has been described as a "land use pattern of single-use zones, typically made up of subdivisions, office parks, shopping centres’ strung together by arterials and highways."  While it is sometimes referred to as "suburban sprawl", the problem is not suburbs themselves, but rather the separation of residential, commercial and retail areas into large, isolated, single-use zones which can only be reached by driving, rather than compact mixed-use walkable neighbourhoods. It is typically characterized by lower population density.

Sprawl is problematic from a number of different standpoints, notably its financial and economic costs, its health and environmental impacts and its social dimensions.

In terms of financial costs, sprawl requires a municipality to provide services to the same number of taxpayers over a larger area.  This requires not only more infrastructure (more pipes, more roads, etc.) but increases soft costs as well: police officers, garbage haulers, and buses, all have to cover a larger area, resulting in increased costs to the taxpayer.

This has a very real impact on the municipal budget.  A recent study commissioned by the HRM shows that changing the urban growth target from 25% to 50% of the population increase would save the municipality  $1.7 billion over the next 20 years. 

In other words, to continue to service sprawl, the HRM will either have to charge higher taxes, or decrease service levels just to break even.  Sprawl imposes such high costs, that observers have linked it with municipal bankruptcies in the US and elsewhere.  It has been further linked to higher housing costs and even as a partial cause of the foreclosure crisis in the US.

Sprawl also imposes economic costs.  For example, because of it's dependence on single-occupant vehicles, sprawl is also associated with gridlock, which costs the Canadian economy $10 billion a year.

Spawl is also associated with a number of environmental and health problems.  An ever expanding city can result in loss of wildlife habitat and greenspace, which is essential for both environmental and human health.  It contributes to depletion and degradation of water sources.  The focus on single occupant vehicles increases reliance on fossil fuels and greenhouse gas emissions.  And it increases air pollution and sedentary lifestyles, leading to rising health problems and costs.

Finally, sprawl is associated with certain social problems, including loss of community, income inequality, and diminished social services.  Sprawl has been accused of lacking "quality of place" and creating social disconnection.


What is density and why is it desirable?

Our HRM Alliance defines density as "the number of people per area".  Statistics Canada defines an "urban density" as 400 people per square kilometer. Spacing Magazine identifies some of the benefits of density as follows: "Residential density[...] is one of the most important characteristics of urban areas. High densities create vibrant streets, support main street commercial areas, and encourage walking, biking and transit use."

Denser cities avoid many of the problems created by sprawl, as detailed above. Municipalities are able to keep costs (and taxes) down by providing services over a smaller area.  More walkable cities avoid many of the costs of gridlock, and reduce air pollution and greenhouse gases.  Wild spaces and water can be preserved, providing habitat for wildlife, as well as recreational opportunities for people.  Finally, denser cities often provide tighter, more closely knit communities and neighbourhoods.  This has led some observers to link density with increased innovation.


Why is sprawl becoming a hot-button issue in Halifax?

Addressing the issue of sprawl has created strange political bedfellows.  42 groups as diverse as the Downtown Halifax Business Commission, the Ecology Action Centre, Fusion Halifax, the Heart and Stroke Foundation, the Halifax Trails Association, and the YWCA have banded together as the Our HRM Alliance, dedicated to making the HRM a more livable and sustainable place.  In particular, the group has been working through the Regional Plan five year review process to try and strengthen the regional plan to more comprehensively address sprawl through seven solutions, including green belting.  They believe that implementation of these solutions will address the problem of sprawl, and help Halifax grow more densely and sustainably.  Groups like the Alliance have been doing a great deal to raise the profile of sprawl as a topic for public discussion.

The issue of sprawl came to a head recently when regional council rejected the application for the 48 story Skye Halifax development.  If built, the two towers would both have stood 150 metres (492 feet) high, making them the by far the tallest buildings in Atlantic Canada.  Council rejected the development on the advice of staff and the design review committee, who found that it did not meet the development rules set out in the HRM by Design rules for downtown development.

Many opponents of council's decision to nix the proposed building suggested that allowing Skye to proceed would have been one way of addressing sprawl.  Many questioned the HRM by Design rules, and suggested Halifax needs to "grow up" and build taller buildings.  Despite this, many vocal opponents of sprawl, and proponents of downtown development, such as the Downtown Halifax Business Commission, supported council's decision. So while many agree on the need to densify and combat sprawl, there is a lack of agreement on whether skyscrapers are part of the solution.

Won't taller buildings help?

While it would seem obvious that building taller buildings is one way to increase density and address sprawl, real-world experience suggests that is not necessarily the case.

On the one hand, New York City, which has 5,818 high-rise buildings, of which 92 are over 600 feet, is quite a dense city by North American standards, with 10,518.60 persons/square kilometer  By contrast Paris, which has only 14 buildings over 492 feet (of which only 8 are over 600 feet).  Paris has used height restrictions to confined high-rise development to specific areas of the city: in most of Central Paris, there are few buildings over six stories high, with the notable except of the Eiffel Tower.  Yet, Paris, with 21,196 persons per square kilometer is around twice as dense as New York.

Houston, which has far fewer development restrictions than most large cities, has 360 high-rises, and 31 skyscrapers over 492 feet.  Yet despite having more tall buildings than Paris, Houston has a major problem with sprawl, with only 1,505 persons per square kilometer.  Similarly, Calgary has few development restrictions and has 14 buildings over 492 feet.  Yet Calgary as a City has a lower density than Houston, at 1,329 person/square kilometer.  It's urban density is not much higher, at 1,554.8 persons per square kilometer.  Calgary is having serious problems meeting the costs of servicing an ever expanding area.  The problem is so serious, that Mayor Nenshi and the fire department have said the City is having difficulty maintaining municipal fire services to meet national standards.

Closer to home, Halifax's North End is one of the densest neighbourhoods in Atlantic Canada, with a density of 5,888 people/square kilometer, despite having very few tall buildings at all.  Another one of Halifax's densest neighbourhoods is Schmidtville, one of its oldest, and most historic.  Schmidtville is a compact, mixed use neighbourhood

So density is not merely a function of height, and there are ways to achieve density without building skyscrapers.  Some experts have suggested that mid-rise development, and not towers, are the key to densification.   Toronto has achieved significant population growth in its urban core in the last several years, due in part to significant mid-rise development, although this has not been without controversy in some neighbourhoods. However, the question becomes how high we go, and what other considerations we want to balance height against.  Is the sky the limit, or is there an optimal height for achieving density?

There is no question that if Halifax is to increase density and combat sprawl, taller buildings will be part of the mix.  However, the experience of other cities suggests that skyscrapers are not necessarily a panacea: the solution will have to be more comprehensive.  Many cities have been able to develop densely without many tall buildings, and in some cases with significant restrictions on height.  Many cities that have allowed tall buildings still have a major problem with sprawl.  Many mid-rise buildings may make a greater contribution than a few high-rises.

Generally speaking, it is the cities that place the least rules around development (like Calgary and Houston) that have the biggest problems with sprawl, while cities with clear, considered development guidelines (like Paris) tend to develop more densely.  Great cities aren't just grown; they are planned.  Whether Halifax becomes the great city it has the potential to be will depend how well our regional plan, downtown plan, and development rules address issues like height and density.


(This post is the first in a series, and is cross-posted with Spacing Atlantic.  In future posts on development in Halifax, I will look at: the rules governing development in Downtown Halifax; the rules around suburban and rural development in Halifax; business and industrial parks like Bayers Lake and Burnside; commercial taxation; and other related topics)

Who Owns the Stanley Cup?

With the news that NHL lockout negotiations have broken down, there is an increasing chance the Stanley Cup finals won't take place this year, leaving hockey fans wondering how they will get their hockey fix.  It has also left some fans wondering why it is that the NHL controls the Stanley Cup at all.  If they aren't going to award the trophy, shouldn't someone else be able to play for the "Dominion Hockey Challenge Cup"?  Why does the NHL get to decide who plays for the hockey's holy grail anyway?  Or as one article put it "If the NHL won't use it, can Canada have the Stanley Cup back?".

While one commentator has referred to the legal status of the Stanley Cup as "unknowable" that is not entirely accurate.  There are some uncertainties around the legal status of the Cup.  However, it seems fairly clear that while the NHL holds trademarks over the name and image of the Stanley Cup, it doesn't actually own the Cup.  The Stanley Cup is held in trust.  A trust is a legal relationship in which one person (the donor or grantor) gives a piece of property to another person (the trustee) to hold that property for the use and benefit of a third person (the beneficiary) or for some charitable purpose. 

In the case of the Stanley Cup, it was gift from Lord Stanley of Preston, then Governor General of Canada in 1892, to be awarded to the top amateur hockey team in Canada.  Lord Stanley appointed two trustees of the Cup, and laid down some fairly general preliminary regulations governing how it was to be used and awarded, which gave broad discretion to the trustees.  The Cup was intended to be a challenge cup, and in the early years, the champion of any senior hockey league could challenge for it.

Around 1908, with the introduction of the Allan Cup for amateurs, the Stanley Cup became the trophy for the top professional hockey team in the country.  The Stanley Cup final became a competition between the Pacific Coast Hockey Association and the National Hockey Association (precursor of the NHL), and later the Western Canada Hockey League as well.  These leagues grew to include American teams, and in 1917 the Seattle Metropolitans were the first American team to win the Stanley Cup.  The PCHA and WCHL later merged to form the Western Hockey League.  In 1924-25 the WHL's Victoria Cougars became the last non-NHL team to win the Stanley Cup.  When the WHL folded in 1926, the NHL was left as the sole league playing for the Cup.

In 1947, the Trustees of the Stanley Cup reached a deal with the NHL that gave the league exclusive control over the Cup, sole discretion over how to determine the winner, and the ability to reject challenges from other leagues.  Although it does provide that if the league ceases to be the top professional league in the world, or that if the league dissolves or terminates, the Cup shall revert to the control of the trustees.  The current trustees are both former NHL Vice Presidents.

Many people have since questioned the validity of this agreement, and for good reason.  Trustees are required to honour the intentions of the donor of the trust.  Intentions can sometimes be difficult to interpret, and in this case, the few regulations that Lord Stanley did lay down in writing give fairly broad discretion to the trustees.  However, it seems fairly obvious that Lord Stanley intended the Cup to be a challenge tropphy, and not to become the exclusive property of one league.  There's a strong argument that it was simply not open to the trustees to enter into such a deal with the NHL, and the agreement is invalid.

During the 2004-2005 hockey lockout, a recreational team called the Wednesday Nighters decided to challenge for the Cup, and took the trustees to court to challenge the validity of the agreement.  The case dragged on and ultimately settled in 2006, by which time the lockout was over.  The settlement agreement provided that the trustees could award the Cup to a non-NHL team in the event that the NHL failed to hold a Stanley Cup competition that season.  However, when the 2012 lockout commenced, the Trustees made clear that even if the NHL doesn't have a season this year, they will not entertain any challenges from non-NHL teams. 

The Trustees are on shaky legal ground here.  Again, their actions don't seem consistent with the original intentions and purposes of the trust, and the agreement with the league is of questionable legal validity.

There is some question as to whether this is a purpose trusts, or a trust for persons.  If it is a trust for persons, it is always open to the beneficiaries of a trust to take the trustees to court and enforce the terms of the trust.  While it is not entirely clear in this case who the beneficiaries of the trust are, there is a fairly strong argument that the beneficiaries are the Canadian people themselves.  If that is the case, then literally any Canadian could go to court to enforce the Stanley Cup trust, and try to force the trustees to award the trophy.

Obviously, the NHL would fight this tooth and nail.  The Stanley Cup is their most valuable asset and they would not give it up without a fight.  Anybody seeking to challenge the league's control of the Cup would doubtless be met by an army of lawyers, and would probably get bogged down in endless procedural wrangling and appeals.  The case likely wouldn't be decided until long after the current lockout is over.

However, given the fact that the NHL is now potentially facing it's second lost season in just 8 years, fans might want to ask themselves whether the NHL is really the best custodian of the Cup, or whether it is time for hockey fans to take control of the cup back, and return it to the use for which Lord Stanley originally intended it: a challenge cup for the best teams in the Dominion of Canada.