Property Wrongs

I will start by saying I owe much of the substantive content in this post to Bruce Pardy and his blog, First Principles. Bruce is a Law Professor at Queens U who I have heard speak more than once over the years, and had a few conversations with. When my former employer put forward a new ‘sexual harassment’ policy back in the day, Bruce was good enough to give me his lawyerly opinion of what it meant. (It will end badly, was the essence of his view).

He is one very sharp dude who says what he believes, and says it well.

Some of you may have heard of the recent agreements between our Federal Government and the Musqueam Indian Band. The Globe published a story on it on March 3 which said this:

The text of the rights recognition agreement, which runs 30 pages, was not released in February when the deal was signed. It does not reference private property, an issue of acute public interest since the B.C. Supreme Court ruled in a separate case last August known as the Cowichan decision. It stated that Aboriginal title is a “prior and senior right” to land, over and above the “fee simple” title that private landholders have.

Bruce also wrote about the Musqueam in a blog post titled Ottawa pours oil on the fire burning up B.C. property rights: The Canadian government has surrendered Vancouver on March 4.

You can read Pardy’s entire post here, no paywall.

Here are some of the more interesting things he has to say….

The Canadian Constitution does not include property rights. But it does guarantee Aboriginal rights.

I had a look, and yes, Canada’s Constitution includes this clause 35(1):

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Just for fun I searched the Constitution for the word ‘property’. Professor Pardy is right, it appears nowhere. As we all have been taught, property is theft, after all.

What that means is that if the Government of Canada decides that an aboriginal band has rights to your property, giving them to that band does not in any way contradict any rights you might think you have – cuz you don’t have any. As Pardy writes –

Those agreements promise to honour private property interests. But “fee simple” and Aboriginal title are incompatible. According to the Supreme Court of Canada, Aboriginal title is a collective right. It cannot be parcelled out into individual lots. No individual, Indigenous or not, can hold exclusive property rights in a plot of land subject to Aboriginal title. Moreover, a group that holds Aboriginal title cannot surrender the title to anyone but the Crown. When it does so, Aboriginal title is extinguished. If Haida Gwaii is subject to Aboriginal title, then in principle no fee simple interests can exist on Haida Gwaii. Those who own property there must now wait to see what the Haida Gwaii agreement will mean.

Aboriginals do have treaty rights, which leads to the following conundrum.

You may also recall that in 2024 the B.C. and federal government recognized Aboriginal title to Haida Gwaii, an archipelago off B.C.’s northwest coast. Here’s what Pardy has to say about that:

And now the federal government has announced that the Musqueam hold Aboriginal title to Vancouver and its suburbs. In an interesting twist, the area covered by the Musqueam agreements appears to include Richmond, where the B.C. Supreme Court found Cowichan title to exist.

How does that get worked out? Two different bands having title to some of the same land? Could we see a return of band warfare? Of course not, we know those folks never engage in violence. However, people who thought they had fee simple title to their homes in Richmond, BC, well…..incoming!! You’re just caught in the middle.

Bruce gets a tad upset by the end of his post. But I don’t think he is wrong in what he writes below. I was in a discussion this week in my seniors’ learning group about contraceptive policy in the 1950s in Canada and the US. We were discussing what could have been the reasons it was so restrictive. In Canada one could possibly blame the oversize influence of the Catholic Church. I pointed out that the Roman Catholics had rather little influence in the US, so that did not explain similar restrictions in the US. One woman in the group pointed out what was to her an obvious driver of restrictions on the use of contraceptives – ‘colonialism’, she said.

So, Bruce has a point when he writes this about the typical Canadian’s attitude toward the government’s ongoing usurpation of the property rights of its own citizens:

If you are surprised, you haven’t been paying attention. If you are outraged, you must be a settler. If you are a property owner in the Lower Mainland, suck it up for reconciliation. After all, we live on native land. Haven’t you been paying attention to land acknowledgements?

Many Canadians cannot even recognize the attack. Their obsequious devotion to reconciliation gets in the way. They are stuck in a stupor of acquiescence and disbelief. The beaver is too good for Canada’s national symbol. The country deserves the ostrich.