Full Comment - Your private property may not be safe from Aboriginal-title court cases

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00:00:44.660 So, does anyone actually own their home in the Vancouver area right now?

00:00:49.960 What about the rest of British Columbia?

00:00:51.960 Is there going to be a problem with right and title to home ownership, land ownership across the country?

00:00:57.020 Hello and welcome to the Full Comment Podcast.

00:00:58.840 My name's Brian Lilly.

00:01:00.400 You may have heard a little while ago about a court case called Cowichan Tribes v. Canada.

00:01:05.580 In it, a parcel of land of about 14 acres was handed over to the Cowichan Tribes.

00:01:12.640 It's currently owned by other people, but the right and title was said to belong to the tribes.

00:01:17.160 It's unclear what that means, but plenty of homeowners turned around and said,

00:01:20.880 we won't be able to get our mortgages renewed.

00:01:23.120 Businesses said that they were going to be in trouble with setting up.

00:01:25.920 There was a lot of uncertainty, and there are now currently appeals.

00:01:29.520 Since then, however, just a few weeks ago on February 20th,

00:01:32.720 the federal government signed and released an agreement with another native group in British Columbia

00:01:37.700 called the Musqueam Indian Band.

00:01:40.120 In that agreement, they said that the rights entitled to much of what is Vancouver, West Vancouver,

00:01:46.460 Burnaby, Richmond, and a large part of Delta belong to the Musqueam Indian Band.

00:01:52.100 But it didn't define exactly what that means.

00:01:54.940 So, where are we now?

00:01:56.740 By my reading of the agreement, this could lead to all kinds of uncertainty.

00:02:01.680 The federal government says it doesn't change anything,

00:02:03.720 and the Musqueam Indian Band say they're not coming for anybody's land.

00:02:07.220 But that's the problem with agreements that are not well defined.

00:02:10.680 I may not have all the answers, but I'm able to reach out to smart people who do.

00:02:15.680 Dwight Newman is a professor of law at the University of Saskatchewan.

00:02:19.180 He specializes in Canadian constitutional law, comparative constitutional law,

00:02:23.500 and indigenous rights law, and he joins us now.

00:02:26.940 Professor Newman, thanks so much for the time on this.

00:02:30.180 I've read some of what you've said publicly about this,

00:02:33.480 and I see that I'm not alone in being concerned about uncertainty.

00:02:38.840 Let's start with the Musqueam issue in that most recent agreement.

00:02:43.220 Where does that leave things in your view?

00:02:46.300 If you were a homeowner in the greater Vancouver area,

00:02:50.240 would you be a little concerned?

00:02:51.440 I think it would be fair for homeowners to have some questions

00:02:56.520 and to have a little bit of concern.

00:03:00.800 But some of the accounts where all of their homes have already been transferred to the Musqueam

00:03:07.460 vastly overstate the issue.

00:03:11.720 So this is the problem.

00:03:14.060 There's complexity on a topic where people would like simple answers.

00:03:18.360 For certain purposes, the federal government has agreed with the Musqueam

00:03:24.200 that they hold Aboriginal rights and title over or within that area, is the phrasing.

00:03:31.020 So it's not clear whether they're agreeing they hold it everywhere there or not.

00:03:35.040 But the federal government would not have the jurisdiction to transfer anyone's homes.

00:03:40.000 The question is what happens over the longer term, building upon this agreement,

00:03:45.840 which is really an agreement about negotiating,

00:03:48.820 and especially if the provincial government gets involved as well.

00:03:52.600 The background claim, even though the Musqueam have said they're not pursuing individual homeowners' homes,

00:03:59.720 has to cause some level of concern for homeowners.

00:04:02.920 So this agreement on rights and title to land in the area was part of two other agreements,

00:04:11.920 so three agreements in total between the federal government and the Musqueam,

00:04:15.380 the other ones relating to fishing rights and coastal waters management.

00:04:20.300 The agreement on land title and rights is very specific when it comes to the issue of what land they're talking about.

00:04:32.520 And if I read it out to most people, you wouldn't have a clue because it's talking about going along the ridge

00:04:38.560 and along this line to such and such a river and then down through there.

00:04:41.600 It actually reads very similar to how our electoral districts are described by Elections Canada.

00:04:47.780 You know, from the rail line to this point and on this road and, you know, and it uses geographical markers.

00:04:54.580 You know, roads can change, but the river is probably not going to move.

00:04:58.280 And so the description of what land is covered is very, very specific,

00:05:02.620 but I would say that the description of land and title is not.

00:05:06.920 And so I want to read to you from section 2.1 of the agreement.

00:05:10.360 And it says,

00:05:11.000 That's pretty wide open, but there is a definition section within the agreement,

00:05:32.060 which says rights and title means the existing Aboriginal and treaty rights recognized and affirmed by Section 35 of the Constitution Act 1982

00:05:40.620 and for greater certainty includes Aboriginal title and self-government rights.

00:05:47.300 Despite the minister going, Minister Rebecca Alty, Minister of Crown Indigenous Relations,

00:05:53.880 going on X and saying this does not impact private property rights in any way,

00:05:58.760 I would look at this and say a decent lawyer taking this to court could end up opening this up to all kinds of interpretations.

00:06:07.420 There could indeed be all kinds of interpretations.

00:06:10.320 I guess part of what remains to be seen is what the case law is going to say about Section 35 Aboriginal title and private property,

00:06:22.160 and that's being litigated in Cowichan.

00:06:24.500 It's being litigated out in New Brunswick in the Willastiquay case.

00:06:28.360 This agreement in its terms in some ways is bounded by what that Section 35 case law ends up saying.

00:06:37.780 On the other hand, some of what it says there already goes further than existing case law.

00:06:44.160 The reference to self-government actually hasn't been upheld by the courts as a Section 35 right at this stage.

00:06:52.460 Maybe they will someday.

00:06:53.480 And Jeff, the federal government signed an agreement, and I know this is not a treaty or a land claims agreement,

00:06:59.220 but the federal government has just signed an agreement recognizing something that has been litigated before the courts in the past.

00:07:05.260 Yeah. I mean, they're giving a particular interpretation of the case law that I think goes beyond what the case law says in that definitional clause.

00:07:16.280 Now, they can negotiate things that go beyond the case law.

00:07:19.180 I'm just surprised that when they're defining rights and title in accordance with what the courts have said on Section 35 rights,

00:07:28.660 that then they say including some things, and then they include some things that go beyond what the courts have actually said.

00:07:35.560 So it might be a forecast of where the courts will go, but that's not usually the way that one would end up defining it.

00:07:44.240 So there's a lot of uncertainties and complexities here.

00:07:47.960 There are other clauses in the agreement that try to say that it's not for the purposes of affecting litigation if things ended up breaking down in the negotiations.

00:08:00.620 But what the federal government has agreed to in this could probably be invoked against the federal government if there were a court case where it were pertinent.

00:08:10.380 This is what happened in Cowichan to the BC government, which got told it couldn't make certain arguments in the Cowichan case,

00:08:19.600 a different case because of things it had said in the Haida agreement about the interaction of Aboriginal title and private property.

00:08:27.900 So there could be unexpected effects from this agreement, not just in this area, maybe in other areas as well.

00:08:35.280 There is a part of the agreement that leaves me puzzled, and I'd like to get your view on this because while I have spent a long part of my career watching the courts and my detractors on X like to remind me that I'm not a lawyer,

00:08:51.640 that I'm not a constitutional law professor as you are, and I'm just some schmo that went to broadcast journalism at Mohawk College.

00:09:00.100 I've spent a lot of time in courts covering the Supreme Court, and you get to understand the patterns, and you get to, you know, whether it's patterns, precedent,

00:09:09.560 you understand directions that courts could take where things might go.

00:09:14.320 But there's part of this agreement that leaves me saying, what on earth could this lead to?

00:09:21.760 And it is where it says that the agreement will honour Musqueam legal tradition, the United Nations Declaration of Rights of Indigenous People,

00:09:31.100 which is international law, and Canadian common law.

00:09:34.420 So these are sometimes going to have competing views.

00:09:40.620 Which one reigns supreme?

00:09:42.580 Which one do you go with?

00:09:44.100 Or is it up to the judge?

00:09:45.800 Could it be up to, well, whichever way the judge or the litigants decide they want to go, their particular point of view?

00:09:54.860 Yeah, I mean, I think it could end up being up to a judge.

00:09:58.120 The main purpose of the agreement is to structure negotiations.

00:10:02.760 So in the first instance, it's up to the Musqueam and the federal government coming together in those negotiations.

00:10:08.660 My guess is where those sources say different things, there will be arguments by the Musqueam to take the largest and most far-reaching of those.

00:10:22.120 And that might well be what ends up prevailing in negotiations.

00:10:26.460 Or if it didn't, it might be what a judge would be persuaded to do.

00:10:30.460 So when Minister Alty goes on social media and says,

00:10:34.580 these agreements do not impact private property,

00:10:36.760 this is preferred to the more uncertain alternative of determining Musqueam's aboriginal title through the courts.

00:10:43.660 By negotiating, we're able to uphold existing property rights and advance reconciliation.

00:10:48.320 That's what she says.

00:10:49.700 And I have no doubt that that is perhaps what the minister believes.

00:10:53.660 But if this is so vague and so open to interpretation, can her word be taken as the final word?

00:11:05.040 Yeah, well, nothing here is the final word.

00:11:08.580 It's an agreement to try to set in place a course of negotiations, and we don't know where those might end up.

00:11:15.800 So I think the minister probably is saying what she believes, to be fair.

00:11:20.840 I think she believes it's not going to affect private property.

00:11:26.700 The Musqueam have said that, that they're not pursuing private property.

00:11:31.120 But what happens down the road, we really don't know.

00:11:36.460 And the agreement leaves some possibilities open.

00:11:41.260 It may support arguments that some people could make.

00:11:44.860 So there are very serious questions here.

00:11:47.740 At the same time, nobody should think the sky has fallen today.

00:11:53.280 It just might down the road.

00:11:55.100 We'll just have to see what happens.

00:11:56.960 And I know that's not a very comforting way to describe it.

00:12:01.240 But that's sort of where we're at right now, that there's an agreement to pursue negotiations

00:12:07.320 on the basis of the federal government recognizing aboriginal title in this area.

00:12:14.140 That comes with complications, because there's also overlapping claims by other First Nations.

00:12:20.680 So there's a bit of a mess to sort out there.

00:12:23.700 But there will be negotiations within what the federal government can do, based on the federal government's recognition of aboriginal title.

00:12:34.420 And I emphasize that bit about what the federal government can do, because largely the federal government actually can't change title to land within the province.

00:12:44.500 That's a matter within provincial jurisdiction.

00:12:47.120 And the current provincial government in British Columbia is run by the New Democrats, who are very much on board with implementing the Universal Declaration of Rights of Indigenous Peoples in a way that is much more liberal, progressive than the previous B.C. liberal government did.

00:13:08.820 I mean, they've gone much further.

00:13:11.540 So just back to the point that the Musqueam say that they're not coming for anyone's land. 0.99

00:13:17.920 I do want to read a quote that was put out by Chief Wayne Sparrow, where he said,

00:13:23.720 Musqueam is not coming for anyone's private property.

00:13:26.180 Our approach to traditional unceded territory is one of partnership and relationship with our neighbors, not trying to take away our neighbors' private property.

00:13:33.980 And I have no reason to doubt Chief Sparrow, but he is just like the current NDP government is the current NDP government.

00:13:42.480 There will be elections.

00:13:44.220 Chief Sparrow is the current chief and will not be chief forever.

00:13:48.240 And someone else down the line could say, you know what, we read this very differently.

00:13:53.060 And it becomes a court challenge.

00:13:56.760 Sure.

00:13:57.700 So, yeah, I raised two points on his comments.

00:14:01.180 So, first, you're right, the chief could change at some point.

00:14:05.760 The policy of the Musqueam could change at some point.

00:14:09.800 Again, whether that matters, Taiwan's home, in the context of this agreement, is still subject to the jurisdiction of the federal government.

00:14:20.980 People should be watching what does the provincial government agree with them, because that's where things could really hit the road.

00:14:27.440 However, the other piece that I would say here is that even though they're not going after anyone's home, you could say, well, well, then why didn't they put that in the agreement?

00:14:38.000 They are actually making use of the threat to individual private property in order to try to negotiate something from Ottawa, in a sense.

00:14:48.920 And so, it operates as part of the background of all of this, that there be some uncertainty over what happens with Aboriginal title claims to private property, because they're going to use that as part of the negotiation with the federal government.

00:15:05.560 And maybe down the road, there could be a clause that does protect private property.

00:15:10.600 In the meantime, yeah, it's an uncomfortable position.

00:15:13.880 There's going to be some uncertainty waved around about private property a little bit, even while they say they're not going after it.

00:15:20.440 Because their main objective, I think, sincerely, is to try to negotiate accommodations from the federal government in light of this agreement.

00:15:29.140 So, before I switch to Tukawachin, where the provincial government has had to extend mortgage and loan guarantees to homeowners after that decision, do you know how this Musqueam Agreement came about?

00:15:46.920 You know, I understand it was a long time in coming.

00:15:49.380 Is this part of an ongoing land claims process?

00:15:53.500 You know, for most of us, it seemed to come out of nowhere, but my understanding, it's been in the works for some time.

00:16:01.960 Yeah, it would have been in the works for some time.

00:16:05.040 I don't know the exact history on it, but there are First Nations claims all across British Columbia, hundreds of such claims, although the provincial government won't release an exact list.

00:16:17.380 But there are hundreds of such claims, and some of them are in negotiations, and we largely don't know the exact state of those negotiations.

00:16:27.180 The federal and provincial governments, a few years ago, agreed on the idea of pursuing sort of more interim agreements.

00:16:34.960 This sort of agreement, like a rights recognition agreement, fits into this model, so it hasn't resolved everything finally.

00:16:43.800 It's sort of agreed on some things, set up a process, set up a dispute resolution process, and tried to set the stage for some interim accommodations, but it's not a final agreement.

00:16:55.540 So there are such negotiations underway, probably in lots of contexts in British Columbia, and we just don't know about those, and it's not a very transparent way of governments going about this.

00:17:10.160 I don't know that this lack of transparency is actually sustainable, given the heightened concern about these issues at the present time in British Columbia, or in Canada generally, but especially in British Columbia.

00:17:22.320 I think that the lack of transparency is at the heart of all of this and causing so much of the consternation.

00:17:28.000 Let's talk about land claims in British Columbia.

00:17:31.540 I've heard, you know, people have said 120% of British Columbia is claimed by various First Nations groups.

00:17:40.220 Why is the treaty system so different in British Columbia that, you know, most of the country where you reside in Saskatchewan, you've got treaties in Alberta.

00:17:50.240 There's treaties in Manitoba, Ontario, Quebec.

00:17:53.540 BC treaties just don't seem to exist.

00:17:56.240 I know there's, I believe there's a couple, but what's the difference between British Columbia and the rest of the country?

00:18:02.360 Yeah, there was a certain stage, a decision not to negotiate treaties in British Columbia.

00:18:08.460 And it's a bit of a historical mystery on just why this happened in British Columbia and not elsewhere, but it was a decision by the government officials there.

00:18:19.560 There's some mixed evidence on why they made that decision in terms of either they just didn't want to negotiate treaties, but there's also some evidence.

00:18:31.040 And they may have been mistaken in this, they may not have been, but the governor at one point apparently thought that it was better for First Nations not to be in treaties.

00:18:41.440 Those that didn't enter treaties may actually get a lot of benefits from that today.

00:18:47.300 They may get much better arrangements, although they've had a long period, obviously, without having treaties and face some consequences as a result.

00:18:57.180 In different parts of the British Empire, there's some places with treaties, some without.

00:19:03.940 And different writers have tried to figure out why this is, but it's just a reality that, for our purposes, that British Columbia have almost no treaties.

00:19:15.620 A bit of the northeastern corner of British Columbia is in one of the numbered treaties.

00:19:19.700 And there are a handful of treaties over very small areas on Vancouver Island as historic treaties.

00:19:28.220 There have started to be some modern treaties, but there were other parts of Canada that faced that as well.

00:19:33.720 Across the north, there were no treaties.

00:19:36.640 There have now been modern treaties reached across the north.

00:19:40.700 Quebec has its own history there.

00:19:43.780 There are some other places as well.

00:19:45.540 There's some disputes in the Maritimes, and this is why we have the Wollosquake case over whether the treaties there actually surrendered land or not.

00:19:55.140 And that's being litigated there.

00:19:59.120 Well, I'm sitting right now on the land that would be called the Toronto Purchase, where the Crown purchased 250,000 acres from the Mississaugas of the New Credit. 0.88

00:20:08.260 And that's been opened up multiple times.

00:20:09.920 I believe the last time, unless it's been opened up again, the Harper government made a multi-million dollar payment on top of the payments that have been made in the 1780s, the 1800s, the early 1900s.

00:20:21.340 Could cases like the Cowichan, which we'll get to in a moment, or this Musqueam Agreement have an impact on treaties and how land and title is viewed, right and title is viewed in other parts of the country, such as in the Maritimes or the Prairies or Ontario?

00:20:38.440 Yeah, in principle, I would say there should be no legal effect on treaties.

00:20:45.060 At a practical level, I guess those in treaties see what those not in treaties are getting, and it may encourage them in trying to put some arguments.

00:20:57.400 The treaties across Ontario are a little bit different, or across part of Ontario, southern Ontario, tended to be smaller land purchase agreements.

00:21:08.780 And then once you got to northwestern Ontario, you got more of the model that ended up becoming that of the numbered treaties.

00:21:16.280 The Robinson-Huron-Robin-Superior treaties start to take some of that form, and then you get the numbered treaties across the prairies.

00:21:25.600 One of the things that arose, though, is that First Nations were able to show that certain treaty terms had not been honoured,

00:21:36.400 and what the Harper government tried to do was set in place a process such that if they could prove that,

00:21:43.460 then there could end up being compensation called a specific claim for a treaty term not being honoured.

00:21:50.580 And there's an ongoing process then of trying to resolve those disputes, and it is a costly process in some of these instances.

00:21:58.460 Some of the agricultural clauses in the prairies are leading to payments to First Nations of hundreds of millions of dollars.

00:22:07.180 And, of course, the big one in Ontario, the Restool case, actually led to, because of an issue where there was a determination the treaty should have had an escalating payment over time,

00:22:21.440 has now led to a back payment in the range of $10 billion, with a B.

00:22:27.020 And so there's some pretty dramatic consequences from some of those, partly because of the compounding effects of interest over time.

00:22:36.480 And we're talking about things that reach way back in time, and the dispute over what rate to apply makes a huge, huge difference as well.

00:22:45.340 So, yeah, there are some lingering issues there, but the issue over the ownership of the land is not there in the prairies or in significant parts of Ontario in the way it is in British Columbia.

00:23:01.440 All right.

00:23:01.740 When we come back, we will talk about the Cowichan decision and see how it's different from Musqueam, how it applies, what people should know about it, and be concerned about.

00:23:10.240 Speaking with Professor Dwight Newman from the University of Saskatchewan, more in moments.

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00:27:02.200 I had said earlier that the Cowichan Tribes decision affected about 1,400 acres of land.

00:27:07.260 I was wrong.

00:27:07.880 It's about 1,850 acres of land in British Columbia along the Fraser River.

00:27:15.320 It impacts a number of homeowners and businesses in that area.

00:27:18.520 And while when that decision came out, Professor Newman, it was the same sort of thing.

00:27:25.080 People said, oh, no, this doesn't affect, you know, private property rights.

00:27:28.700 It doesn't affect your ability to own your home.

00:27:32.080 People who had to renew their mortgages were quickly finding out that they couldn't renew their mortgages.

00:27:36.840 Businesses were having trouble getting financing to the point where the NDP government of British Columbia under Premier Eby

00:27:43.700 had to extend a $150 million loan program to help with this.

00:27:50.240 What is at the core of the Cowichan decision?

00:27:55.320 And is it related at all to Musqueam?

00:27:58.200 Is it different?

00:27:59.540 What do we need to know about this?

00:28:02.360 Okay.

00:28:02.580 Well, the way it's related is complicated because the Cowichan and the Musqueam actually argued against each other in the case.

00:28:11.100 So they have overlapping claims.

00:28:14.520 The Cowichans succeeded in this particular case concerning a bundle of land in the city of Richmond.

00:28:22.020 The Cowichan are mainly based on Vancouver Island, but they ended up proving to the satisfaction of the judge

00:28:28.180 that they had had a seasonal village there and that they had exclusive occupation throughout the year

00:28:35.060 because other First Nations, including the Musqueam, were scared to enter onto the Cowichan land

00:28:40.500 because of the viciousness of the Cowichan at the time.

00:28:46.020 And there's some pretty gruesome facts in the judgment to support that.

00:28:49.100 A couple of things.

00:28:50.540 You know, all the grade school courses my kids were taught, you know,

00:28:54.260 First Nations were always peaceful to each other and didn't fight until colonial settlers showed up.

00:29:00.120 So there's obviously that is incorrect, but we already knew that.

00:29:03.800 But the federal government has just recognized this land as Musqueam territory in this agreement.

00:29:10.780 But the court said, oh no, there's fishing rights for the Cowichan.

00:29:15.700 So they're kind of at odds.

00:29:16.940 This agreement and the Cowichan tribes ruling are at odds.

00:29:20.140 Yeah, not just fishing rights for the Cowichan, but title for the Cowichan.

00:29:24.240 And that's where we get into the really significant things.

00:29:27.360 So where there's Musqueam title within this area of Metro Vancouver,

00:29:31.960 it can't be all of the land in Metro Vancouver or there is a contradiction with this court decision.

00:29:38.340 That's it.

00:29:38.980 The court decision, let's be clear, it's under appeal.

00:29:41.980 There's also an attempt to reopen it, but just taking it for what it is at the moment.

00:29:46.120 The court decision back in August involved the judge making a declaration of Aboriginal title over an area

00:29:54.800 and ordering the city of Richmond and the federal government to start a process on transferring the lands that they owned within that area to the Cowichan.

00:30:05.740 And they gave them 18 months to negotiate about how to do that.

00:30:10.780 So just the government-owned land though?

00:30:13.600 So just the government-owned land is ordered to be transferred.

00:30:17.280 And that's all that the Cowichans sought.

00:30:19.600 But they did seek a declaration of Aboriginal title over an area that did include privately owned land.

00:30:26.600 And privately owned land in technical legal terms, and I don't want to go back to the feudal origins of this,

00:30:35.280 but it's called fee-simple land.

00:30:37.240 It's the form of landholding in the technical legal term.

00:30:40.900 Does the Crown actually own all land in Canada, and then we just pay for the right to occupy it for a time?

00:30:46.960 In a sense, yeah.

00:30:48.880 So you have a lesser right than the Crown by having fee-simple.

00:30:53.380 Or there can be other kinds of fees.

00:30:55.660 They don't really apply in Canada anymore.

00:30:59.180 Fee-simple is the normal kind of landholding that people have.

00:31:02.780 But that's as large a right as one can have, in essence.

00:31:09.080 You do own a fee-simple.

00:31:12.460 If someone passes away with no heirs, it sheets back to the Crown.

00:31:17.680 So it is, in that sense, Crown land.

00:31:21.040 But if you have heirs, you can pass it on to your heirs if it's fee-simple land.

00:31:26.320 Why I'm bringing up this technical concept is because the city of Richmond owned some of its land in fee-simple

00:31:33.800 because it had received it due to unpaid taxes from people who had owned it in fee-simple.

00:31:41.020 So it got fee-simple title to this land rather than some other government form of landholding.

00:31:46.960 Because of that, the judge ends up saying things about the interaction of Aboriginal title and fee-simple land.

00:31:53.260 And they're a confusing mix of things.

00:31:56.940 Because she says at one point that the two can coexist, which doesn't make sense

00:32:01.660 because each is an exclusive ownership of the land.

00:32:05.620 And two people can't both exclusively own the exact same thing.

00:32:10.900 They could exclusively own things next to each other, but they can't exclusively own the same thing.

00:32:17.380 You and I could share a cup of coffee, but we can't both have the same cup of coffee

00:32:22.760 unless we're sharing it.

00:32:24.060 You know, if I say it's mine, it's mine.

00:32:26.280 We could share a cup of coffee, but we can't both own the cup of coffee exclusively.

00:32:30.800 So, yeah.

00:32:31.860 So, in essence, though, the judge also ends up saying that because of the constitutionalization

00:32:38.580 of Aboriginal title, parts of the BC Land Title Act are invalid

00:32:43.320 and wouldn't stand up against Aboriginal title, says various things that imply that if there

00:32:51.540 were a contest between Aboriginal title and private property, the Aboriginal title might win.

00:32:56.580 Now, she says in terms of this private property that's within the area awarded to the Cowichan

00:33:04.180 as Aboriginal title, but where that fee-simple land, that private property land isn't being transferred,

00:33:10.480 she says, well, they would have to pursue separate proceedings to get that transferred,

00:33:15.800 and maybe the private owners would still have some defense, like that they bought it innocently

00:33:21.740 for value.

00:33:22.900 Courts do tend to respect that, but whether that would stand against a constitutionally protected

00:33:28.900 Aboriginal property right is pretty uncertain.

00:33:32.000 So, there's this cloud of uncertainty over the fee-simple private property land that got declared to be

00:33:39.940 Aboriginal title land. 0.59

00:33:42.460 The owners didn't really know about this until suddenly there's this court decision,

00:33:47.880 and even sometime after the court decision, the City of Richmond held a meeting a few months later,

00:33:53.560 and some people were still finding out then by getting a notice of this meeting that,

00:33:58.280 by the way, your land has been declared to be within an area of Aboriginal title.

00:34:02.780 And then this is when banks started being unsure whether to lend on these properties,

00:34:09.020 or investors become unsure about buying the properties, and you don't blame them.

00:34:14.220 No, there's some real uncertainty created for those lands, and frankly, going back to the Musqueam,

00:34:21.780 but going elsewhere in BC as well, the case creates some uncertainty for private property throughout

00:34:29.220 British Columbia, which is almost all subject to Aboriginal title claims, except in a few areas

00:34:34.520 where those have been resolved.

00:34:36.100 Now, that depends on this case being the law, and it is under appeal.

00:34:42.540 It might well be framed differently by the Court of Appeal, or ultimately by the Supreme Court of Canada.

00:34:49.060 So the effect outside that area is smaller, but the effect on the land in the area that's been declared

00:34:57.480 Aboriginal title, there's a lot of uncertainty there, and that gives rise to the issues around mortgages and so on.

00:35:04.740 My mind is going in a hundred different directions with what you're telling me here,

00:35:08.520 and all these different possibilities.

00:35:11.600 And I'm thinking in particular of the Haldeman Tract, which is not traditional Aboriginal territory,

00:35:17.240 in who occupies it now, but was a land grant given after the American War of Independence

00:35:23.440 to the Mohawk and the Iroquois, and that has long been in dispute.

00:35:28.080 And I can see there's a lot of dispute about people who have fee simple title,

00:35:31.680 and I can imagine every municipal government in Caledonia and Haldeman County looking at that,

00:35:37.720 and the lawyers for the Confederacy of the Six Nations looking at that and saying,

00:35:42.420 okay, can we apply this here?

00:35:44.860 I mean, this case could open up many, many cans of worms.

00:35:50.300 Well, it certainly opens up some big issues.

00:35:53.540 And it's the first case that's really squarely confronted this.

00:35:58.360 There have been a couple of others in the past that touched on it.

00:36:02.300 So we knew this issue is coming, but a lot of First Nations have strategically decided

00:36:07.880 not to claim against private property.

00:36:10.320 And so the big 2014 Supreme Court of Canada decision in Silcoteen or Chilcotin saw the Silcoteen nation 0.50

00:36:20.220 or the Chilcotin nation exclude from their claim area even the areas of private property

00:36:26.860 that are located within the area that they traditionally occupied.

00:36:32.240 And so there was just no dispute there.

00:36:34.440 They avoided any extra complication from that.

00:36:38.840 But we've now seen the next phase of First Nations starting to claim against private property.

00:36:45.840 And so the Cowichan didn't ask for the transfer of the private property,

00:36:50.200 but they did seek a declaration of Aboriginal title.

00:36:53.700 They included areas of private property.

00:36:56.240 And what we've got in New Brunswick is even more dramatic.

00:36:59.020 The Wollostikwe case, it's an Aboriginal title claim to half the province,

00:37:05.080 and there's another one to the other half of the province.

00:37:07.900 One of the challenges there is that there's actually not much crown land in New Brunswick.

00:37:13.900 And then there's this claim that the mid-1700s treaties didn't contain an explicit land surrender clause.

00:37:21.840 And so there's an attempt to put these Aboriginal title claims that inevitably impact on private property.

00:37:27.780 And so what the Wollostikwe did is they said they're not going to claim against individual homeowners.

00:37:33.840 They made up this category they called the industrial defendants.

00:37:38.180 But in essence, it's large landowners that have their land to make profits from the land.

00:37:45.140 And they said they are claiming that land.

00:37:47.780 Well, the New Brunswick Court of Appeal has shut that down subsequently to Cowichan and said,

00:37:53.540 no, you can't claim Aboriginal title from private property owners.

00:37:58.360 However, there might be compensation that owes from the Crown for that.

00:38:03.560 And that's a separate issue that will be examined further.

00:38:07.420 Now, the Wollostikwe are seeking leave to appeal this to the Supreme Court of Canada.

00:38:12.120 They would like the Supreme Court of Canada to say, actually, there can be Aboriginal title claims to private property.

00:38:18.160 So we might see the Supreme Court of Canada engage with this question sooner than later if they decide to hear an appeal from this interim decision in New Brunswick.

00:38:28.840 And I know there's so many complications to all of this.

00:38:32.940 Listeners must be struggling.

00:38:35.420 You need big charts to keep track of all of this.

00:38:38.180 But this is where we're at.

00:38:39.260 You need one of those charts that they use for finding the suspect and the connections on the cop TV shows.

00:38:46.740 Would the Supreme Court wait for Cowichan and the New Brunswick case to hear them at the same time?

00:38:52.460 Or would they necessarily just say, no, we'll hear them individually?

00:38:57.560 They'll hear them individually.

00:38:58.860 They're too far apart in time.

00:39:01.300 So either they don't hear Wollostikwe, or if they do, they'll hear it first. 0.98

00:39:05.980 Because Cowichan, there's this complicated attempt to reopen the trial decision.

00:39:12.680 Some of the private landowners are arguing that the trial judge should reopen it and hear from them before finalizing the judgment.

00:39:21.720 Whatever happens with that, then it's going to take time to go to the Court of Appeal.

00:39:26.180 And it would only be after that that there could even be an attempt to go to the Supreme Court of Canada.

00:39:30.720 So it's years away from the Supreme Court of Canada.

00:39:33.860 The Wollostikwe case, the court could decide in the next six months whether they'll hear it.

00:39:41.080 And if they're going to hear it, it would be in the next year after that.

00:39:44.680 How much of this is related to Canada deciding to adopt the United Nations Declaration for the Rights of Indigenous Peoples?

00:39:54.340 Because it comes up in the Cowichan decision.

00:39:56.940 I'm sure it comes up in the New Brunswick case.

00:39:59.100 It comes up in the Musqueam Agreement.

00:40:02.360 I remember, you know, originally the Canadian government was opposed to adopting UNDRIP, as they call it,

00:40:09.200 saying that, you know, it would have impacts like this.

00:40:12.220 And I remember in 2010, when the Harper government was moving towards adopting this, I said,

00:40:17.520 are you guys sure this is going to cause all kinds of problems?

00:40:20.380 Oh, no, they said.

00:40:22.140 This is largely symbolic, which seems quaint now,

00:40:27.000 because UNDRIP has been integrated into federal law, in British Columbia especially.

00:40:32.700 It has been integrated into provincial law.

00:40:35.540 And it's showing up in court decisions and agreements.

00:40:38.760 Is the United Nations Declaration on the Rights of Indigenous Peoples moving Canadian law further away from where it would have been

00:40:47.620 if this had not been otherwise adopted?

00:40:50.760 It's actually tough to say that it's had a major impact on these cases.

00:40:57.000 These cases follow on a line of case law about Aboriginal title developed under Section 35 of Canada's Constitution Act 1982.

00:41:06.640 Now, there's a little bit of reference to UNDRIP in the cases.

00:41:10.660 In the Cowichan case, there's a bigger reference to the Interpretation Act Amendment, which was done there.

00:41:17.980 And so, what British Columbia did is they said that they're passing legislation to implement UNDRIP.

00:41:27.600 And they said they're going to amend, they said a couple of years later,

00:41:31.340 they'll amend British Columbia's Interpretation Act to say that every judge reading a statute needs to read that consistently with UNDRIP where possible.

00:41:40.320 And then, actually, it's not even as much in Cowichan, but in the subsequent decision, Kikala, which is about the mining system in British Columbia,

00:41:51.100 the court ended up saying, well, they can now actually reread every British Columbia statute in light of UNDRIP,

00:41:58.520 and they can make declarations that statutes are not consistent with UNDRIP.

00:42:02.760 And part of that, the BC government invited with amending the Interpretation Act,

00:42:09.460 they shouldn't be surprised when courts then follow that provision.

00:42:13.400 The decision that courts would start striking down statutes for inconsistency with UNDRIP is, to be fair, I think, a surprise.

00:42:21.900 I think that's beyond what the statute was ever meant to do, the Declaration on the Rights of Indigenous Peoples Act.

00:42:27.700 But, both British Columbia and the federal government have these statutes,

00:42:33.780 and it's because of those statutes, to a significant degree,

00:42:38.740 that you've had some courts making some statements about UNDRIP being part of Canadian law,

00:42:44.180 which is technically right.

00:42:46.260 It's been brought into Canadian law at the federal level and in British Columbia,

00:42:50.560 but then they're using it in other ways to affect reasoning that probably don't follow from that.

00:42:56.580 There's a big case in Ontario on the duty to consult in the federal courts,

00:43:02.240 the CABOAC and Canadian Nuclear Laboratories case.

00:43:07.940 An appeal was just heard at the federal court of appeal in October,

00:43:11.200 but before that, the trial judge said,

00:43:14.300 well, UNDRIP has become part of Canadian law,

00:43:18.360 therefore she'll modify the duty to consult doctrine to fit better with UNDRIP 0.99

00:43:22.820 and shift it to free prior and informed consent.

00:43:24.980 Yeah, and I think it's a really problematic decision because the duty to consult

00:43:29.760 is a constitutional doctrine under Section 35,

00:43:33.160 and she was relying on the federal statute,

00:43:36.800 and the federal government passing a statute can't change constitutional law in any logical way,

00:43:43.060 but UNDRIP is getting here and there into the reasoning of courts.

00:43:47.560 I'm not sure it's determinative in the Cowichan case,

00:43:52.580 but it is becoming a big factor in the courts, for sure.

00:43:57.240 And this is what makes me uncomfortable with it,

00:43:59.400 is that UNDRIP is not a Canadian law or statute.

00:44:02.720 Yes, we can implement it through Canadian law and statute,

00:44:06.120 but it is fundamentally an expression from an international body.

00:44:12.120 If we had wanted to say, all right, well, we want to implement all of that

00:44:15.000 and put it in Canadian law specifically and not rely on the United Nations,

00:44:20.480 that would be one thing.

00:44:22.140 But farming out your law to a different organization that none of us can elect or vote out

00:44:28.220 always leaves me a little bit uneasy, and it's, as you say,

00:44:34.300 now judges are reading it as superseding the Constitution, which should never happen.

00:44:39.900 So a lot of unknowns.

00:44:43.180 I turn to you, Professor, to try and clear things up,

00:44:47.520 and you give students a passing or failing grade all that time.

00:44:52.180 I think I'm going to have to say that you failed me in clearing things up,

00:44:55.180 but that is not your fault.

00:44:56.280 Fair. No, this is my worry.

00:44:59.340 I've come here, and you asked me to bring clarity,

00:45:02.240 and I'm probably just bringing more questions and problems for listeners.

00:45:06.960 But that's just trying to accurately describe the state of things in Canada

00:45:11.800 on these issues right now.

00:45:14.180 This is, I think, why we're seeing a lot of discussion,

00:45:17.420 starting from Cowichan, but also these later cases.

00:45:21.460 Suddenly, Canadians are seeing there's some real impacts from these

00:45:25.100 on everyday Canadians that could well occur,

00:45:30.060 but we don't know what those are,

00:45:32.040 and it's really complex to even try to talk about what those might be,

00:45:36.280 but we're trying to get through them a little bit here in our discussion.

00:45:39.540 I do appreciate you at least attempting to bring clarity

00:45:43.000 where it's difficult to see through the mud.

00:45:45.200 Thanks so much for your time today.

00:45:47.120 Okay, thank you.

00:45:48.720 Full comment is a post-media podcast.

00:45:50.760 My name's Brian Lilly, your host.

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Full Comment - March 09, 2026

Your private property may not be safe from Aboriginal-title court cases

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