Adam Pankratz: The Cowichan ruling is already causing a property rights panic in B.C.
City of Richmond sends letter to residents warning that their property may not belong to them
The City of Richmond has launched the first salvo in what will ultimately be the battle to decide the future of private land ownership in British Columbia. By failing to make its best arguments to defend the public interest, British Columbia’s NDP government has created uncertainty in private property ownership, the economically crucial real estate market, and cast a cloud over any future investment in the province related to land. The issue is complex but at its heart comes to down to a simple question: will Aboriginal Title ultimately supersede fee simple title, which guarantees private property rights?
In August, a
landmark court decision concluded that the Cowichan First Nation had Aboriginal title to land claimed and that fee simple title land in that area was “defective and invalid,” raising the prospect that private property could be revoked.
The province, the city of Richmond (where the fee simple land is found), along with the
Musqueam Nation swiftly appealed the ruling.
The ruling caused understandable alarm and the B.C. government has been criticized for not defending property rights as vigorously as it could have. It is likely that B.C. did
not make its best argument to defend property rights in the Cowichan case. Namely, that Aboriginal title had been “extinguished” when the fee simple title was granted. The directive not to argue this point was established when B.C.’s current premier, David Eby, was the attorney general. The chickens of that scandalous directive are now coming home to roost.
The uncertainty the ruling created has already caused upheaval locally. Last week, the City of Richmond
sent out a letter to property owners in the area concerned, informing them “the court has declared Aboriginal title to your property which may compromise the status and validity of your ownership.” Clearly, the City of Richmond believes there is potential here that the current landowners do not, in fact, own the land they believe they do. It does not take a genius to realize that this has the potential to ignite a political and economic firestorm in B.C. and across Canada, as the ruling could set precedent for the entire country.
There are of course those who will say that the courts do not intend to deprive current landowners of their land and that
there is nothing to fear. Specifically, the court decision says “BC owes a duty to the Cowichan to negotiate in good faith reconciliation of the Crown granted fee simple interests held by third parties and the Crown vesting of the soil and freehold interest to Richmond with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown.” However, while landowners may not be physically thrown off the land they purchased, it would be exceptionally naïve to think the decision will not have a slew of possibly very negative consequences. What cannot be contested is that the decision has definitely created uncertainty for British Columbia property rights and investment in its economy as well as laid the groundwork for public repudiation of anything labelled “reconciliation.”
First, the uncertainty. Uncertainty of property rights is not some idle point. As economist Hernando de Soto
has argued, secure and strong property rights are the essential difference between rich, prosperous countries and those that suffer from extreme and ongoing poverty. The reason is simple: with strong property rights and protections, owners of land or property are able to leverage their resources and create wealth. This is something we in Canada take for granted. Having fee simple title declared “defective and invalid” throws this all into question. Put simply, will banks mortgage or credit properties in the Cowichan area to the same level as elsewhere? Might they take a more cautious approach to any land which might, or could be, subject to a land claim? Is it conceivable this affects lending on any land, anywhere in the country? No one knows for sure and that is the essence of the problem. As a result, the freezing up of credit on fee simple land is not some wild and extreme hypothesis but a real possibility.
Second, we must confront the issue of the loss of public support for anything “reconciliation.” It is fair to assume that most Canadians would recognize that the Aboriginal peoples of Canada have legitimate grievances and historically have been poorly treated. As a result, there has, up to now, rightly been broad support for efforts to elevate the economic and social standing of First Nations. This has been a good thing. However, the public goodwill and support is at extreme risk if part of the required remedy to past injustice results in the diminution or elimination of the property rights of non-indigenous Canadians. If the public sense a threat to their homes and property — which they would not be unreasonable in sensing — support for reconciliation of any kind will be vaporized in a dramatic explosion of public fury.
In some respects, the result of the Cowichan case is almost a sideshow to its broader implications. Even if private property rights end up affirmed, there will be years of uncertainty and legal limbo created for those affected. Other Canadians will have taken note and much of the progress made on Indigenous relations could well be lost. That serves no one and makes our country poorer in the meantime.
The letter the City of Richmond felt compelled to send is a reminder that endless land acknowledgments and the degradation of non-indigenous Canadians as evil “colonizers” has consequences. We are about to experience those consequences and they are unlikely to be pretty.
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