Canada’s top court needs to quickly decide whether Aboriginal title overrides private property rights, or risk freezing British Columbia’s economy under years of uncertainty. That’s the pitch from Opposition BC Conservative Leader John Rustad in a letter Tuesday appealing to the federal attorney general to intervene in the recent Cowichan Nation court case and send the issue as a reference question to the Supreme Court of Canada.
“This is a matter of significant national concern, with particular resonance in British Columbia,” Rustad wrote to Attorney General Sean Fraser.
“The province’s land ownership system now operates under uncertainty, and the already difficult investment climate will be further destabilized at a time when the federal government has emphasized the importance of moving ahead with major resource projects.”
Ottawa is “reviewing the decision and will continue to work collaboratively with all parties involved,” the federal government said in a statement Tuesday in reply to Rustad’s letter.
The B.C. government has been left scrambling in the wake of the bombshell ruling by the B.C. Supreme Court earlier this month that private property rights sit below Aboriginal title rights in legal hierarchy. The determination was made as part of a case that granted the Cowichan Nation title over traditional territory in Richmond, including federal, provincial and municipal lands, as well as privately owned industrial properties, farms and homes.
The ruling means non-Indigenous British Columbians could see their ownership of homes, businesses and land cast into doubt as part of First Nations title cases.
“People wanting to invest in forestry, mining, housing or anything else, they are all asking what does this mean for private property rights, how do I justify putting capital into British Columbia when I don’t know what’s happening on the ground,” Rustad said in an interview.
B.C. Attorney General Niki Sharma has said the province will appeal the decision to the B.C. Court of Appeal because the province’s fee simple land title system underpins the entire economy and must be defended.
That could then lead to another appeal to the Supreme Court of Canada, which may or may not decide to hear the case.
“We’re talking five years, maybe as long as 10 years, before this thing gets resolved,” said Rustad. “The uncertainty cannot go on that long.”
“People need to know,” he added. “You can’t just leave this out there. If you want to put $200 or $300 million into a housing project, how do you sell the units to people when they say I don’t know if I’m going to even own the units or know what my rights are as a private property owner?”
The federal government could instead send the core issue of Aboriginal title versus private property rights as a constitutional reference question to the Supreme Court. It would be a constitutional legal opinion, and now a ruling on the Cowichan Nation case, which would continue to wind its way through separate appeals.
However, the Supreme Court is also not necessarily obliged to accept the government’s referral.
It’s not a perfect solution. But there remains undeniable value in having the nation’s highest court settle the issue as quickly as possible.
The BC NDP government is trying to grow the economy to pull the province back from the largest deficit in its history. That’s going to be near impossible, while enormous questions about the validity of basic private property rights hang unanswered over the province for years.
Rob Shaw has spent more than 17 years covering B.C. politics, now reporting for CHEK News and writing for The Orca/BIV. He is the co-author of the national bestselling book A Matter of Confidence, host of the weekly podcast Political Capital, and a regular guest on CBC Radio.
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