Bruce Pardy – Section 43, which allows province-specific amendments, won’t provide the answer
In British Columbia, property rights are in turmoil. The B.C. Supreme Court recently declared that Aboriginal title exists on 800 acres of land in Richmond, a suburb of Vancouver. Aboriginal title, said the court, is “senior and prior” to fee simple interests. In the shadow of the decision, given the implications, Aboriginal title claims are receiving more attention. Kamloops and Sun Peaks ski resort are targets in one such claim. Meanwhile, the B.C. government has been conferring Aboriginal title across the province too. It continues to make agreements, such as on Haida Gwaii , to transfer control over land use in the province.
Courts and governments have caused this problem. The framers of Canada’s new constitution, adopted in 1982, excluded rights to private property. But at the last hour, they guaranteed existing Aboriginal rights and title. Over decades, the Supreme Court of Canada has expanded the scope of those rights. The recent decision about Richmond is a culmination of its work. That decision is under appeal, first to the B.C. Court of Appeal. After that, we may find out if the Supreme Court approves. But that could take years.
It’s not just the courts. In 2015, the Trudeau government agreed to implement the United Nations Declaration on the Rights of Indigenous Peoples ( UNDRIP ). UNDRIP says that Aboriginal groups have the right to own, use, develop and control any lands that they traditionally occupied or used. In 2019, the B.C. legislature incorporated UNDRIP into BC law. Known as DRIPA , the statute requires B.C. law to be consistent with UNDRIP. The NDP government has been granting Aboriginal title and control across the province accordingly.
What can be done? The Canadian constitution has an onerous amending formula. Repealing the section on Aboriginal rights would be next to impossible. So would adding private property guarantees to the Charter. But last week, Dwight Newman, professor of law at the University of Saskatchewan, suggested an alternative in the Post. Rather than attempt wholesale change, he proposed an amendment specific to British Columbia.
Read the full article at National Post: https://nationalpost.com/opinion/bruce-pardy-courts-and-governments-caused-b-c-s-property-crisis-theyre-not-about-to-fix-it
Or view it without the paywall at: https://www.msn.com/en-ca/news/canada/bruce-pardy-courts-and-governments-caused-b-c-s-property-crisis-they-re-not-about-to-fix-it/ar-AA1QmthF