The Supreme Court of British Columbia ruled last August in the Cowichan Tribes v. Canada case that the natives proved that they had sufficient historical occupation on an area of about 800 acres.

Property rights not protected by constitution

And in British Columbia it can mean the property you paid for is not yours

James Pascual
Farmers Forum

We used to think that government was here to help. Now we just want them to stop taking more of what’s ours.

British Columbians are beginning to think that the government is taking away more than their hard-earned money and their freedoms. Now, it could be their property.

Traditionally, we’ve really only needed government for three things: for our security, to ensure fairness in human interaction and to protect our property. Going back to 1690, John Locke said simply that government’s main end was only for one thing: ensure preservation of property.

Unfortunately, Canada’s constitution does not protect property rights. The constitution doesn’t even mention it. Canada and New Zealand are the only two countries of 38 OECD nations that do not have constitutions that protect the right to own property and defend that against unjust seizure.

Now 250 homeowners just south of Vancouver, in Richmond, B.C., are wondering what will become of the properties they bought and for which they have a written title and deed. The court told them they are not allowed to sell, renovate or alter their properties without indigenous approval.

That’s because the Supreme Court of British Columbia ruled last August in the Cowichan Tribes v. Canada case that the natives proved that they had sufficient historical occupation on an area of about 3.25 sq. kilometres (800 acres). The court said that the Cowichan people maintained a “permanent summer village” of about 2,250 people along a riverfront prior to 1846.

The court emphasized that aboriginal title is rooted in “prior occupation” and rejected claims of abandonment. The court decided that there was continued occupation of the disputed lands through the 1870s. The court also decided that British officials agreed to set the land aside as reserves and recognized it as an “Indian settlement.” But key officials sold portions of the land to themselves for resale.

But this begs the question. How many hundreds of years can one go back to in order to make a claim on land that you never paid for in the first place or even held title for?

The houses on the disputed land, including multi-million dollar homes, are generally 50 to more than 150 years old. Where have all the people who supposedly lost their land been for the last 50 years?

To make matters worse, the B.C. situation is more complicated because there are few signed treaties and British Columbia recognizes aboriginal rights over other rights.

In 2015, the Trudeau government agreed to adopt 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 B.C. law. Known as DRIPA, it allows B.C. law to be in line with UNDRIP. To do so, the NDP government has been granting Aboriginal titles and control across the province.

How do you fix this mess? In other words, how do you give the property back to the people who paid for the land? Changing the Canadian constitution is highly unlikely, if not simply impossible.

The easiest way out is if the federal and the B.C. governments reverse support for UNDRIP. But neither government is willing to do so.

As Queen’s University law professor Bruce Pardy says, “Few political actors will step out of line on Aboriginal questions, even to defend the country’s land, economy, and people. Will we discover whether there is anything more Canadian, after all, than acquiescence? In Canada, truth and reconciliation has morphed into fiction and capitulation.”

The city of Richmond, the governments of Canada and British Columbia, have appealed the court decision.