Are Aboriginal land claims becoming a forever issue?
Angry Mortgage Guy Podcast | Host Ron Butler with guest, law professor Bruce Pardy.
This episode explores the ongoing legal claims regarding Aboriginal title in Canada, particularly in British Columbia and New Brunswick. In the case of the latter, a claim for the western half of the province has yet to be fully adjudicated, with the court indicating that while Aboriginal title may not supersede private fee simple lands, compensation could be required if the claim is successful. Similarly, the Cowichan case in B.C. illustrates that Aboriginal groups can assert rights to land they historically used, even if they did not reside there, leading to complex legal battles over land ownership and rights.
Prof. Pardy describes the implications of these claims as profound because they introduce uncertainty into the security of land ownership for private property owners. The concept of fee simple title, which traditionally grants exclusive rights to landowners, is now clouded by the potential for Aboriginal claims. Even if Aboriginal groups assert they do not intend to take specific lands, the mere existence of these claims undermines the confidence of property owners and lenders, as the security of their titles becomes questionable. This uncertainty can affect property transactions, lending, and overall market stability, as banks and lenders may hesitate to provide mortgages on properties with ambiguous title security.
The legal framework established by Section 35 of the Constitution, which guarantees Aboriginal and treaty rights, has exacerbated this complex situation. While it was intended to protect Indigenous rights, the evolving interpretations by the courts have led to a system where property rights are increasingly seen as entitlements subject to government regulation and Aboriginal claims. This shift not only complicates the relationship between Indigenous and non-Indigenous landowners but also raises concerns about the broader implications for property rights in Canada, as the balance between individual rights and collective claims continues to be contested.
The situation in British Columbia regarding Aboriginal rights has been significantly influenced by the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Initially, Canada, along with the U.S., Australia, and New Zealand, voted against this resolution. However, the Trudeau government later reversed this stance, leading to the incorporation of UNDRIP into provincial law in 2019. This legislative change prompted the NDP Eby government to interpret the statute as a directive to negotiate agreements with various groups concerning different territories, either acknowledging Aboriginal title or transferring management rights. This situation poses a significant challenge for B.C., where numerous lands remain unceded, but it is a problem that extends across the entire country.
One notable example of this is the agreement cited by Prof. Pardy concerning Haida Gwaii, an archipelago off the coast of British Columbia. In 2024, the governments of British Columbia and Canada made agreements with the Council of the Haida Nation to “recognize and affirm” Haida Aboriginal title over Haida Gwaii—simultaneously acknowledging Aboriginal title while asserting that private property rights will be respected. This creates a contradiction, notes Prof. Pardy, as Aboriginal title is a communal interest that cannot coexist with individual fee simple title. The legal framework suggests that if Aboriginal title is recognized, it undermines the security of private property ownership, leaving landowners uncertain about their rights and the implications of these agreements.
While the discussion acknowledges the historical mistreatment of Aboriginal peoples and the need for compensation, the evolving legal landscape complicates property rights for both Indigenous and non-Indigenous landowners.
Prof. Pardy characterizes the current system of Aboriginal title in Canada as controlled and managed by a small group of Aboriginal elites rather than by the broader community. He explains that when a group successfully establishes Aboriginal title over a piece of land, individual members do not receive fee simple title, leaving them subject to the decisions and authority of their leadership. This structure creates a pattern where the interests of the elite (including non-Indigenous lawyers) are prioritized, perpetuating a system that does not serve the needs of the majority of Aboriginal individuals. As a result, many “rank-and-file” Aboriginal people find themselves marginalized, lacking the autonomy and rights typically associated with property ownership. Furthermore, this system is not only detrimental to Aboriginal communities but also imposes burdens on taxpayers.
Highlighting the importance of equal justice for all individuals, irrespective of their background, Prof. Pardy contends that the current legal system’s recognition of different rights based on group identity has compromised this fundamental principle. He advocates for a legal framework that treats everyone equally. The existing system, he says, creates divisions, perpetuates historical grievances, and will not succeed in fostering a truly free and just society.
