Options for fixing British Columbia’s property rights crisis

A series of court decisions, government legislation and agreements between individual First Nations and the British Columbia and/or federal government have thrown property rights into question in B.C. The resulting crisis will continue to cost British Columbians and extend across the country until governments restore the protection of private property rights.

Part of the crisis is from legislation by the current B.C. government. In 2019, with unanimous support in the legislature, it passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA), incorporating the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into B.C. law. UNDRIP says that Indigenous peoples have the right to use, own, develop and control lands, territories and resources they traditionally used or occupied, and to give or withhold “free, prior and informed consent” to activities on such territories.

Last November, the B.C. Court of Appeal ruled that the province’s reformed mineral claims regime violated this legislation. More than 20 similar lawsuits against the provincial government have followed. The court’s decision demonstrates that DRIPA has real consequences and was not simply an innocuous gesture to recognize past harms against Indigenous people.

Legislation by elected officials is not the only source of difficulties, however. Also last year, a B.C. Supreme Court decision granted “Aboriginal title” covering more than 800 acres of land in Richmond (a suburb of Vancouver) to the Cowichan First Nation. The court said that where such title is determined to exist, it is “prior and senior” to—meaning it supersedes—other property interests, including private fee-simple title. This decision has thrown the rights of more than 150 property-owners into question and raises broader questions for the entire province. Nor was Cowichan a one-off: the courts recently awarded Aboriginal title over Nootka Island, while the provincial government continues to evade questions on the number of similar court cases pending.

The B.C. and federal governments have also entered into numerous bilateral agreements recognizing Aboriginal title and/or granting management powers over various areas, perhaps most notably Haida Gwaii, an archipelago off the northern coast of B.C., where the approximately one-half of the population that is non-Haida had no say in the agreement. More recently, the federal government and the Musqueam Indian Band signed agreements regarding much of Metro Vancouver.

Private property rights—the authority to exclusively possess, use or transfer an asset—helped enable Canada (and many other countries) to emerge from the grinding poverty that characterized most of human history. They are essential to economic prosperity. British Columbia already faces sluggish business investment, weak private-sector job growth and stagnant living standards. More businesses are closing in the province than opening. And residents are leaving. Uncertainty over private property rights only deepens these economic challenges. If the situation isn’t rectified, this crisis could extend to the rest of Canada.

A new essay series that we have edited offers possible solutions to this untenable situation.

Dwight Newman, Professor of Law at the University of Saskatchewan, suggests using an existing constitutional mechanism to clarify the relationship between Aboriginal title and private property in B.C.—namely, section 43 of the Constitution, which allows amendments that affect only one province. The B.C. legislature would pass a resolution then obtain recognition from the federal Parliament. This approach was used in the 1990s to replace Newfoundland’s religious school boards with a single public system. The provincial and then the federal government could, for example, pass a resolution precluding Aboriginal title claims against existing private property. A key benefit of this solution is that it could be implemented relatively quickly while awaiting other court decisions or longer-term ways to resolve the issues democratically.

Internationally-recognized Indigenous lawyer Thomas Isaac proposes that governments recommit to clear, transparent and principled treaties as the primary tool to negotiate recognition of constitutionally protected Aboriginal rights. Treaties are agreements that are constitutionally protected and create binding enforceable obligations between the Crown (i.e. government) and Indigenous people. Isaac’s approach relies on existing frameworks and experience to solve the crisis but requires a re-commitment to the process by governments.

Finally, Bruce Pardy, law professor at Queen’s University, suggests more fundamental—indeed, sweeping—constitutional reforms, including repealing section 35 of the Constitution, which guarantees “the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada,” revising the Charter of Rights and Freedoms, and repealing other statutes that treat Indigenous people differently than other Canadians.

Canada’s prosperity rests in part on its tradition of protecting private property, but these rights have now been thrown into question. Fortunately, there are several potential solutions to restore functioning workable property rights. The status quo not being an option, British Columbians, and all Canadians, need to understand the pros and cons of different solutions.