Juno News - Are Indigenous rights creating two-tier justice in Canada？

00:00:00.400 What if the house you bought paid a mortgage on and raised a family in was never really yours

00:00:06.560 to begin with? A British Columbia court ruled this summer that land property owned for, I don't know,

00:00:13.360 150 years or so may never have been legally owned at all. And that's because the BC court accepted

00:00:20.240 this indigenous oral history and 170 year old journal entry as grounds to invalidate today's

00:00:27.520 property titles. Now that's certainly curious because typically courts would reject evidence

00:00:32.800 that can't be substantiated and that's for very good reason. So in my latest episode of Disrupted,

00:00:38.720 I speak with retired lawyer and author Peter Best about a ruling that could reshape indigenous

00:00:44.320 title law, property rights and the very meaning of ownership in Canada. Now this ruling affects

00:00:51.200 or could potentially affect every Canadian who thinks that when you buy something you should

00:00:56.400 probably own it. So check out the link in the description to watch the full conversation now on

00:01:01.200 Juno News. Peter, thanks for joining me today. Thank you. Pleasure. I, well, no, it's the pleasure

00:01:11.760 is mine. I was reading your article in the C2C Journal about how Canada's courts promote indigenous

00:01:18.560 radicalism. And certainly on my show, I talk a lot about how different institutions are promoting

00:01:24.560 various forms of radicalism. So that really caught my attention. But especially you make the point that

00:01:30.640 reconciliation has become kind of like a one way street where the law, it seems to be giving way

00:01:39.200 every time there's conflict with different ideologies. And in this particular instance, we're talking about

00:01:45.040 land back ideology or the land back movement. And just to make that a bit clear for people, if we think

00:01:50.800 about the land acknowledgements that we were told to say all the time that are mandated within government

00:01:56.080 institutions, the idea behind that is we keep repeating that this land belongs to a certain

00:02:01.280 group of people, a certain ethnos, and it might have been unseated, for example. And the implication here

00:02:07.360 is that it was stolen and things that are stolen possibly need to be returned. And so that, I mean,

00:02:13.200 that's just a generalization here. But we're also seeing that the courts are accepting

00:02:19.280 this concept we call indigenous ways of knowing as a legal argument. So that's kind of what we're

00:02:24.640 talking about here a little bit. But maybe if we start from the basics of the case and what you wrote

00:02:29.760 about, could you walk us through a little bit of the history that grounds this case and why it matters?

00:02:37.600 Well, there's different cases that the Supreme Court of Canada has handed down that generally show,

00:02:43.440 in my opinion, a bias in favor of aboriginal peoples. Section 35 of the Constitution talks about

00:02:52.720 the rights of the aboriginal peoples of Canada are hereby recognized and preserved. So the court has

00:03:00.960 taken that, in my opinion, to adopt a stance that in all cases, in most cases, between the Crown,

00:03:09.360 between the people of Canada and an aboriginal group, the court, in my opinion, shows bias

00:03:17.600 in favor of the aboriginal peoples. It's basically on the basis that, as they've said in several cases,

00:03:25.040 they were the, in substance, victims of colonialism, that victims of imperialism,

00:03:33.440 and victims of residential schools. Each time the court makes these declarations,

00:03:40.720 they're not based on evidence that was adduced in the trial that they're dealing with in their

00:03:46.480 judgment. The conclusions they're drawing are based on newspaper articles, based on the Truth and

00:03:54.960 Reconciliation Report, based on statements made by aboriginal advocates. The court is taking, making

00:04:03.600 conclusions based on evidence, not evidence, because evidence means, uh, means, means testimony and

00:04:11.680 documents properly put before the court in a trial. And the court makes these historical, social, political

00:04:20.560 conclusions based not on evidence, but on, I suppose, their, uh, their personal dispositions and personal

00:04:28.960 beliefs. And that's where I'm saying that, uh, the courts have become radicalized and that they're making

00:04:35.680 judgments based on evidence not before them, rather based on the general sentiments that they have

00:04:43.280 based on what they absorb from politicians and from the media. Um, the Restoul case went to the Supreme

00:04:51.120 Court of Canada and the Supreme Court basically approved the conduct at trial, whereby the aboriginal

00:05:00.000 trial litigants who were suing the Crown and eventually got billions of dollars from the Crown, based on the

00:05:06.400 judge's decision. The, uh, the judge called it not a trial, which lawyers know what a trial is. It's, uh, it's a form of

00:05:18.640 civilized combat that is conducted pursuant to pre-set rules. The court called it not a trial, but a proceeding of

00:05:29.680 of reconciliation, which is radical, which is unprecedented for a judge to say, this is not

00:05:39.600 me presiding over the resolution of a dispute between two adverse parties. This, because there's

00:05:46.080 aboriginals involved, is a proceeding of reconciliation where niceness and good intentions are going to

00:05:55.040 govern rather than the cold hard law and rules of evidence. So in that case, the aboriginals were allowed 1.00

00:06:03.520 to, um, install a pole with feathers on it, a spirit pole or something in the well of the courtroom,

00:06:13.680 in front of the lawyers. That area is normally reserved for his majesty, the king and his judicial

00:06:22.080 magistrates. And it, it's an area of neutrality where the, where the king presides over a neutral, uh,

00:06:32.640 resolution of a dispute between citizens. Here, the court, uh, uh, uh, made it into a reconciliation

00:06:41.120 forum and the Supreme Court of Canada approved it. So in the court, uh, the Supreme Court is

00:06:50.240 telegraphing to all the judges. Apply different rules when, when there's an aboriginal issue before

00:06:59.040 you. And that is one of the main basis of why I say the courts are becoming radical, uh, not neutral,

00:07:09.440 and they're becoming seen to be biased because it's not whether they're actually biased. It's whether they're

00:07:17.440 giving off the appearance of bias. And that's what lessens social trust in the justice system. When people

00:07:24.160 feel, uh, you know, the, uh, the playing field is uneven from the get go. That's what the court is doing.

00:07:32.800 Yeah. There's a few things that you mentioned in there. Maybe we can dig into a few of them. You talked a

00:07:36.720 little bit about the, uh, what, what I'm calling the indigenous ways of knowing, which is, I guess,

00:07:40.560 the technical, uh, term for a lot of, of these things being introduced into the courts. And you

00:07:44.800 talked a little bit about, um, the, the fair, the fair application or equal application of the law. And

00:07:50.000 those are two things I'm kind of interested in. But if, if I dig into here a little bit, one of the,

00:07:54.160 the indigenous ways of knowing is this oral history telling, which, um, a lot of indigenous, uh,

00:07:59.520 cultures didn't have a written language. And so they, they rely on oral history, but when oral history is

00:08:04.400 allowed to be, uh, in used as evidence, essentially the argument that you make is that's basically

00:08:10.400 hearsay. And we don't use hearsay within, um, the, the, I guess, traditional liberal court system

00:08:16.880 that is supposed to treat everyone fairly, uh, as part of rule of law because it's unreliable evidence.

00:08:22.960 But this is sort of what's happening in this case. What do you think about that?

00:08:25.520 Yes. Uh, the oral hearsay exception for aboriginals arose in about

00:08:33.760 1997 when a Supreme Court of Canada justice says, well, if you don't let them give hearsay evidence

00:08:42.000 because they were, they were all preliterate cultures, none of the indigenous tribes of Canada

00:08:50.800 had written languages. And the judge came to his conclusion already being suffused with bias in

00:09:00.720 favor of the aboriginal side. He seems to have wanted them to be able to win their cases. So he invented 0.99

00:09:11.280 a new rule of evidence whereby only they only aboriginals were allowed to, um, to offer as proof of their cases

00:09:24.000 what their ancestors told their grandparents, who in turn told their children, who in turn told the

00:09:31.840 witness in the stand. Classic hearsay, which for 400 or 500 years, you know, has never been allowed

00:09:40.320 because of its inherent obvious unreliability. Uh, uh, uh, the idea behind the hearsay rule is

00:09:48.320 you can't testify what someone told you unless the person who told you that is going to be in court to

00:09:55.520 be cross-examined. So they created this exception and the judge said, well, how else can they prove their

00:10:05.120 case unless we make a new rule so they can prove their cases easier? Whereas the rest of us who have to go to

00:10:12.320 court, we have to prove our case with acceptable traditional evidence. And if we can't, too bad, you

00:10:21.440 lose. And we all have to face the fact that we want to have justice, but if we don't have traditional

00:10:30.560 evidence that's acceptable, we can't have justice in the court. So, um, and, uh, the principle underlying

00:10:41.440 the manufacture of the hearsay exception for indigenous cases, it, it's just the sentiment of

00:10:49.360 the court to give them a better opportunity to prove their cases. But it's just, it is discriminatory

00:10:57.120 because none of the other races or ethnic groups in Canada have that benefit. Why should they have it? 1.00

00:11:05.360 They say they should have it because they've been historically treated unjustly, which is a political,

00:11:14.480 uh, conclusion drawn from out of court evidence, not expert evidence, just stuff they take from the

00:11:22.480 media air and apply in court cases. It results in the uneven application of the law and the loss of

00:11:32.480 trust and faith in courts by non-Aboriginal litigants who have to go against Aboriginals where they get the 1.00

00:11:40.080 benefit of this rule, which is, is exploited and, uh, dealt with in bad faith all the time. Why not? I mean,

00:11:50.720 why wouldn't you take advantage and make up evidence and say someone told you something if

00:11:57.280 the payoff is millions of dollars in judgments or the acquisition of unprecedented new rights for your

00:12:05.040 particular race? So it's a bad rule that creates animosity. Yeah. Yeah. But even, even if everyone was honest all the time,

00:12:16.720 uh, and let's be, uh, uh, let's be generous. Let's say everybody's honest all the time and nobody lies.

00:12:24.320 What the danger here is also that we end up with multiple different types of legal systems that apply

00:12:29.920 to different cultures. We have this term, uh, that I come across all the time, culturally appropriate,

00:12:34.320 right? We, or culturally safe. Um, and so the implication here is that different cultures have different needs.

00:12:39.840 And if you apply that to the legal system, in this case, we're doing this with indigenous groups,

00:12:43.360 they have their own particular need for the courts to apply or to adapt their particular culture.

00:12:49.520 And therefore now we have a different legal system or a different legal process for them.

00:12:53.120 Well, what's stopping, you know, all preferred client groups getting their own, uh, particular

00:12:59.280 legal adaptations. Uh, but that, I mean, that, that's a whole thing we could talk about for, for hours.

00:13:04.800 You also mentioned, uh, something, uh, reconciliation proceedings, this idea, it's not a trial, it's

00:13:10.800 reconciliation proceedings. And, but that does that imply then that we don't, we don't really, again,

00:13:17.760 it's sort of on the same top. We don't really have a rule of law here. We have, um, legal proceedings

00:13:23.200 specifically adapted for this reconciliation, uh, truth and reconciliation process.

00:13:27.680 Yes. And reconciliation, it started off defined by the Supreme court as a way of meshing aboriginal

00:13:38.960 rights and crown colonial rights in a way that each, each of the sets of rights is, uh, interfered with

00:13:49.200 as least as possible. It applied to a specific fact-based legal situation, reconciliation.

00:13:57.760 The Supreme court has forgotten the legal precise nature of reconciliation. And they're now using

00:14:07.040 the term in the sense of reconciliation being a social political movement to

00:14:16.320 increase the nation to nation relationship between the supposed

00:14:22.480 relationship between the crown and 625 different Indian bands or first nations, as they call them. So,

00:14:31.120 uh, the court has lost sight of what reconciliation is. And the court, in my view, has taken on the role

00:14:40.800 of the legislature, has crossed over into activism to, to bring about some undefined political

00:14:51.440 and social goal of reconciliation. Of course, nobody ever defines what reconciliation is. It's usually a term

00:15:02.720 used by Aboriginal interests to gain an advantage, to cause the crown or the non-Aborigines of Canada 0.84

00:15:12.000 to give up something and give it to them. The other phrase that is used with reconciliation is the honor of the crown.

00:15:22.320 And it used to mean the crown must act honorably when they're carrying out treaty obligations or other

00:15:30.080 obligations owed to Aboriginal peoples. It's specific to an existing treaty or Aboriginal right that is being enforced.

00:15:40.240 It now means, honor of the crown now means whenever there's, whenever there's a dispute,

00:15:46.720 the crown, the crown, the people of Canada are not allowed to fight hard for their side of the dispute.

00:15:54.240 They have to throw in the towel because it would be not honorable to fight Aboriginal claims, even when 1.00

00:16:02.560 the claims have no basis in history or a weak basis in history. A weak basis in law are novel claims claiming new,

00:16:11.600 you know, new rights that are going to cost millions and millions of dollars to finance if they're granted.

00:16:23.360 So the argument is, oh, it's a guilt trip word, honor of the crown. Reconciliation is a guilt trip word,

00:16:31.200 where non-Aboriginals against whom claims are being made are guilted into acceding to the claims

00:16:38.720 because not to do so would be dishonorable or would would be not promoting reconciliation. Of course,

00:16:47.200 they've completely abandoned the meaning of reconciliation that the Supreme Court set out

00:16:52.240 10 years or so ago that was fact specific. And the honor of the crown now can mean almost

00:16:58.640 anything an Aboriginal claimant says it means. It just means be nice and keep your pocketbook open for

00:17:05.360 us. That's what honor of the crown is coming to mean. Don't ever say no to us.

00:17:11.360 Yeah. Many Canadians seem to really be paying attention to this particular issue because they're

00:17:15.920 worried that this could apply to their own property. So if the property that I bought in good faith,

00:17:22.000 thinking that it was mine, as soon as I paid off my mortgage, etc. If, you know, if the courts turn

00:17:28.080 around and say, well, actually, that wasn't yours this entire time. And we've just decided it's going to

00:17:32.560 go to this particular band or that particular band or that particular nation, right? That's a real worry

00:17:37.360 for a lot of Canadians. And do you think there's a legally coherent alternative to this? And what can

00:17:43.120 Canadians do if they want to possibly look into this a little bit more or even challenge it?

00:17:50.480 Well, in my opinion, the only solution to this, to stopping these endless claims against the

00:17:58.800 Canadian taxpayer, endless claims against the citizens of Canada, who, in my book, there is no

00:18:05.520 difference, I argue, relatively speaking in history, the Great Britain treated the Aboriginal peoples of

00:18:12.800 Canada relatively decently, relatively honorably. There's no slaughters, there's no genocides,

00:18:20.720 tried to educate them in residential schools. And I've read a lot about these things, and the people

00:18:29.200 our ancestors were honorable and decent and tried their best. And so don't think that we have any

00:18:40.000 reason to feel guilty. If you look at the expanse of history and see how conquered peoples throughout

00:18:46.960 history were treated, they were murdered, raped and despoiled. And none of that happened in Canada. And the

00:18:56.320 kind of terminology being used for my ancestors and yours, maybe, is disgraceful by our leaders. And

00:19:06.720 uh, they should be defending the decency with which our ancestors treated Aboriginal peoples. Nothing's 0.99

00:19:16.320 perfect in history. Some people say every page of history is blood soap. Well, not every page of Canadian

00:19:22.160 history is. Relatively speaking, we have a lot to be proud of in Canada. And uh, and the honor of the crown

00:19:31.600 has been more than fulfilled by present-day Canadians and our ancestors. And uh, I wrote my book and I wrote the

00:19:43.440 article to point out to the courts, stop sacrificing present Canadians on the altar of false and unjustified

00:19:55.120 guilt. And stop making court decisions based on, on uh, faulty historical reasoning about colonialism and

00:20:06.240 imperialism and cruelty towards Aboriginal people. Open your eyes, read real history books and see what

00:20:12.320 real cruelty is. We've, we've been really decent as Canadians over the last 150 years.

00:20:21.040 Yeah. Yeah. I, I think you're expressing a lot of the things that, um, I'm very concerned about is that

00:20:27.200 many of these ideas that may have started from a place of, uh, genuine, genuinely wanting to, to do well,

00:20:34.080 uh, turns into maybe or creates maybe a sense of tribalism that wasn't there before. It was less

00:20:41.120 pronounced. And I'm concerned that continuing doing this might move that, uh, might create more of that

00:20:47.120 in the long run. For example, if we don't have any guardrails and we have special treatment for certain

00:20:52.000 ethnic groups in the law, uh, how do we know that more and more land is not, is not going to be, uh, given to

00:21:00.560 indigenous tribes and maybe people live on that land and maybe they might, they might be dispossessed.

00:21:04.800 There's certainly, I don't, you know, there are certainly individuals out there, uh, radicals out

00:21:09.120 there who would like to see that happen. And, and how do we prevent those things from happening? And,

00:21:12.800 and I think people's trust in the system is maybe diminishing day by day. Uh, but I, I really appreciate

00:21:18.320 you joining the show, Peter today. And I, everyone should go read, uh, read his article. There'll be a link

00:21:23.360 in the description, but, um, yeah, thank you. Thank you so much for joining me today.

00:21:27.200 Just one more comment. The solution is amend the constitution to repeal section 35.

00:21:36.560 That is the source of a racial division that is increasingly happening because can you just,

00:21:43.440 can you just say what is section 35? Just so social people know it's the provision that was put

00:21:48.400 in the constitution in 1982 that says that the rights of the Aboriginal peoples of Canada are hereby

00:21:56.480 recognized and preserved. And based on that section, the Supreme Court of Canada has declared

00:22:04.080 Aboriginal title, which has taken ownership of properties in Richmond, BC from the true owners

00:22:14.400 and handed them to an indigenous band on Vancouver Island. So what you mentioned has already happened.

00:22:21.920 People have been deprived by a trial court of ownership of their property of their homes and businesses.

00:22:32.720 There are claims for similar Aboriginal title over all of British Columbia and over most of New Brunswick

00:22:40.400 and other parts of Canada where there was no treaty. So all of this, all these claims, all this racial division

00:22:48.480 and dissension has originated from the way the Supreme Court of Canada has interpreted section 35 of the constitution.

00:22:57.120 So, um, it's become a section of the constitution that is creating racial tension, racial division,

00:23:07.120 and is harming the economy of Canada greatly. So my, I've given up on reforming section 35 because

00:23:20.960 the Aboriginal demands are relentless and they're getting, you know, their appetite grows with their feeding, 1.00

00:23:28.000 and they've been so successful that they want to feed more against the interests of all Canadians.

00:23:36.880 So, yeah, well, that appeals to me. Repeal, repeal, repeal is what I, what I like to hear. I think we need to

00:23:42.960 have a lot more appealing of a lot of things going on in Canada to set the record straight.

00:23:47.040 Well, it would be like, like Lincoln amending the American constitution to reduce slavery. It would be like

00:23:55.680 the constitution being amended to give the vote to women. Sometimes constitutions need to be amended

00:24:03.200 to bring about a reforming purpose. And this section and the way the courts have determined it has

00:24:12.320 created racial tension and racial ill will vastly greater than anything I've ever seen in my life.

00:24:20.080 And so reconciliation is not happening. Rather, whatever the opposite of reconciliation is,

00:24:26.400 that's what section 35 is causing. And it needs to be repealed.

00:24:32.400 Well, that's all the time we have for today. Thank you so much for joining me, Peter. And like I said,

00:24:38.000 everybody should go read the article. Thank you. It's really difficult not to view this situation

00:24:42.480 cynically at this point. You really have to ask yourself if we can rely on a rule of law that

00:24:48.320 predictably applies the rules equally, as in equally to each individual, rather than equitably, which is

00:24:55.840 treating different client groups differently on the basis of their cultures to somehow create some

00:25:01.040 form of equality, or if the courts are becoming a vehicle for preferred ideologies under the hammer of

00:25:08.560 activist judges, regardless of the consequences on everyone else. And if what you believed was your

00:25:15.440 legitimate property may only remain your property at the pleasure of the courts, perhaps this may be just the

00:25:22.880 thing that ignites a fire among the silent majority. For True North, I'm Melanie Bennett.

Juno News - January 08, 2026

Are Indigenous rights creating two-tier justice in Canada？

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