Dwight Newman: Aboriginal title’s conflict with private property must be resolved

The ruling by the British Columbia Supreme Court in the Cowichan Tribes case earlier this month highlights just how many legal rules on constitutionally protected Aboriginal title remain unresolved and how much of a problem those legal gaps create.

One of the issues getting the most media play, that of the interaction between Aboriginal title claims and privately owned lands, is one where the judgment seems to have implications but doesn’t quite come out and say anything clear — a complex conclusion I’ve been discussing in my Law for Breakfast Substack. The judgment says that Aboriginal title takes priority over fee simple (the form of landholding of private landowners) but that it’s not going to make a specific declaration about any privately owned land. If you’re confused, join the club.

While the Cowichan ruling is being appealed by the British Columbia government because of the major uncertainties it has created for the province’s land ownership system, the appeals process could take years and might still not offer clarity.

Let’s back up a bit to understand the broader context of this sort of uncertainty. In 2014, in the Tsilhqot’in case, the Supreme Court of Canada issued the first-ever judicial declaration of Aboriginal title to a specific tract of land in Canada. At the time, some lawyers, myself included, warned that the judgment had left dozens of important legal issues about the rules on Aboriginal title unresolved and without meaningful legal guidance.

One of the issues I raised at that time in a report for the Fraser Institute, “The Top Ten Uncertainties of Aboriginal Title After Tsilhqot’in,” was the potential implications of Aboriginal title for privately owned land.

This issue has percolated over the years. In their case, the Tsilhqot’in Nation deliberately avoided raising it by excluding small areas of private ranchland from their claim area in a remote region of British Columbia.

In the Cowichan case, the Cowichan claimants similarly asked not to have a full judicial declaration against any privately owned lands in urban Richmond, but they did seek and get a declaration against lands owned by the City of Richmond in fee simple (again, the same form of land ownership that private landowners have).

So, there is a gradual move toward Aboriginal title having implications for private landowners, even while everyone has plausible deniability at each specific step.

In principle, there has been no specific legal conclusion on that point because private landowners might be able to use certain defences in court that weren’t available to their public counterparts.

One of these defences, that of being a “bona fide purchaser for value,” can result in court protections for people who bought land innocently and paid for it. Technically, this didn’t apply to the City of Richmond.

So, maybe that defence will apply to someone else worrying that their land is affected. Or maybe it won’t. Wait and see some years from now if you still own your land. And if you need to sell it before then, see if the buyer offers a different price because of the shadow of uncertainty over it. But don’t worry, because this is all just the way the law in this area develops — slowly and with nobody ready to take accountability and make some big, definitive decisions.