Bruce Pardy is a Professor of Law at Queen’s University
In British Columbia, property rights are in turmoil. But not just in B.C.—across Canada, land is susceptible to the threat of Aboriginal rights.
This property upheaval has two distinct sources. The first is Section 35 of the Constitution Act, 1982. The second is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). B.C. is particularly susceptible to both, but the rest of the country is not immune from either.
Courts control Section 35. Governments and legislatures control whether UNDRIP applies in their jurisdictions.
Section 35 was the basis of the recent Cowichan decision from the B.C. Supreme Court in which Aboriginal title, the court said, is “prior and senior” to fee simple property.
DRIPA, the B.C. law enacting UNDRIP, is now the B.C. government’s mandate to make agreements granting title and/or management rights to specific Aboriginal groups over specific territories.
Adopted in 1982, the Canadian Charter of Rights and Freedoms does not guarantee a right to property. Governments can take property away simply by passing a law saying they can. However, Section 35 of the Constitution, recognized and affirmed the “existing aboriginal and treaty rights of the aboriginal peoples of Canada.” It affirms Aboriginal rights that existed as of 1982.
But the Supreme Court of Canada has used section 35 to champion and reimagine Aboriginal rights. In 1997, for instance, it articulated a new vision of Aboriginal title. In 2004, it established the Crown’s “duty to consult.” In 2014, it recognized Aboriginal title over a tract of Crown land. In 2021, it granted Aboriginal rights under Section 35 to an American Indigenous group.
While B.C. is especially susceptible to Aboriginal title claims because the province is largely unceded (that is, most of the land has not been signed away by First Nations through treaties), Aboriginal claims can nonetheless also be made under Section 35 across the country.
Read the full article at Fraser Institute: Aboriginal title—a national, constitutional threat | Fraser Institute