It’s not a big deal
By Bruce Pardy, first published by the Fraser Institute
There’s section 35 of the Constitution, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the British Columbia statute that incorporates UNDRIP into B.C. law (DRIPA), the Cowichan decision, the Haida Gwaii agreements, the Gitxaala case, the Musqueam agreements, and many more. In recent months and years, political and legal developments have created uncertainty for title and use of property, both private and public, in B.C. Yet some people insist it’s no big deal. Here are three erroneous reasons to ignore the Aboriginal title threat to property in the province.
1. Fee simple property is not affected
You may read or hear that these developments do not affect private property. It’s true that no private property has yet been confiscated and surrendered. But the Cowichan decision says that Aboriginal title, when found to exist on the same land as fee simple title, is “senior and prior” to private property. The B.C. government has also recognized Aboriginal title over territory where private fee simple property is held. The implications of these developments are still unfolding, but at a minimum it makes the security of private property uncertain.
Those agreements, such as on Haida Gwaii, an archipelago off B.C.'s northern coast, claim that Aboriginal title and fee simple title can co-exist. But that is not consistent with how the Supreme Court of Canada has described Aboriginal title. Aboriginal title is a group right that can be surrendered only to the Crown. It cannot be split up into lots and transferred to private parties. Fee simple title means exclusive rights. If another party also has rights over the same territory, your property rights are not exclusive. Moreover, some agreements grant Aboriginal management rights over land and resources, which means that possession and use of private property will depend upon permission from an Aboriginal authority.
2. They’re not after your homes, just reparations and compensation
Aboriginal groups are not after people’s homes. That’s what some Aboriginal leaders have said. They may well be genuine. But even if they are, the assurance misses the essential point—if you require assurance from another party that they won’t act on their rights over your property, then your property is not secure. Such assurances are not legally enforceable promises. Leaderships change, and so can policies. If the leadership of a group decides they have not been offered the massive reparations and compensation they believe they deserve, Aboriginal title can still be wielded. Moreover, the assurances are inconsistent with the governance and management rights granted in agreements made by the B.C. government, such as over Haida Gwaii, which grant authority over land use and resources.
3. The Crown can infringe on Aboriginal title, so public land use is not affected
Even if private property might be affected, most land in B.C. (around 95 per cent) is Crown land. And the Supreme Court of Canada has said the Crown can infringe on Aboriginal title. Therefore, some say, the threat to property is a tempest in a teapot. If only that were true. The Supreme Court has indeed said the Crown can infringe on Aboriginal title in some circumstances, but the ability is limited. Section 35 of the Constitution, which guarantees Aboriginal rights, is not subject to Section 1 of the Charter, the “reasonable limits” section, but the Court has established an analogous test. It requires compelling and substantial public objectives, meaningful consultation and accommodation, and consistency with the Crown’s fiduciary duty. So Aboriginal title does indeed tie the government’s hands and impede the uses to which land can be put. Moreover, the B.C. government itself is granting management rights to Aboriginal groups over specific territories, so land use in those areas will no longer be within the exclusive domain of the provincial government to determine.
The threats to private property in B.C. are real and require genuine action. Ignoring or minimizing the real and growing problems won’t end well for British Columbians.
For the original version of this article, go to the publisher’s website here.
Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.
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