Options for fixing British Columbia’s property rights crisis

Skip to Content News Archives Economy Energy Oil & Gas Renewables Electric Vehicles Mining Commodities Agriculture Real Estate Mortgages Mortgage Rates Finance Banking Insurance Fintech Cryptocurrency Work Wealth Smart Money Wealth Management Investor Personal Finance Family Finance Retirement Taxes High Net Worth FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials More Innovation Information Technology FP500 Podcasts Small Business Lives Told Tails Told Shopping Financial Post Store Obituaries Place a Notice Advertising Advertising With Us Advertising Solutions Postmedia Ad Manager Sponsorship Requests Classifieds Place a Classifieds ad Working Profile Settings My Subscriptions My Offers Newsletters Customer Service FAQ News Economy Energy Mining Real Estate Finance Work Wealth Investor FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials This advertisement has not loaded yet, but your article continues below.HomeFP CommentOptions for fixing British Columbia’s property rights crisisCanada’s prosperity rests in part on its tradition of protecting private property, but these rights have now been thrown into questionLast updated 7 minutes ago The B.C. and federal governments have also entered into numerous bilateral agreements recognizing Aboriginal title and/or granting management powers over various areas, perhaps most notably Haida Gwaii, an archipelago off the northern coast of B.C. Photo by Shaughn Butts-PostmediaA series of court decisions, government legislation and agreements between individual First Nations and the British Columbia and/or federal government have thrown property rights into question in B.C. The resulting crisis will continue to cost British Columbians and extend across the country until governments restore the protection of private property rights.THIS CONTENT IS RESERVED FOR SUBSCRIBERS ONLYSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman, and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.SUBSCRIBE TO UNLOCK MORE ARTICLESSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.REGISTER / SIGN IN TO UNLOCK MORE ARTICLESCreate an account or sign in to continue with your reading experience.Access articles from across Canada with one account.Share your thoughts and join the conversation in the comments.Enjoy additional articles per month.Get email updates from your favourite authors.THIS ARTICLE IS FREE TO READ REGISTER TO UNLOCK.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one accountShare your thoughts and join the conversation in the commentsEnjoy additional articles per monthGet email updates from your favourite authorsSign In or Create an AccountPart of the crisis is from legislation by the current B.C. government. In 2019, with unanimous support in the legislature, it passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA), incorporating the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into B.C. law. UNDRIP says that Indigenous peoples have the right to use, own, develop and control lands, territories and resources they traditionally used or occupied, and to give or withhold “free, prior and informed consent” to activities on such territories.Get the latest headlines, breaking news and columns.By signing up you consent to receive the above newsletter from Postmedia Network Inc.A welcome email is on its way. If you don't see it, please check your junk folder.The next issue of Top Stories will soon be in your inbox.We encountered an issue signing you up. Please try againLast November, the B.C. Court of Appeal ruled that the province’s reformed mineral claims regime violated this legislation. More than 20 similar lawsuits against the provincial government have followed. The court’s decision demonstrates that DRIPA has real consequences and was not simply an innocuous gesture to recognize past harms against Indigenous people.Legislation by elected officials is not the only source of difficulties, however. Also last year, a B.C. Supreme Court decision granted “Aboriginal title” covering more than 800 acres of land in Richmond (a suburb of Vancouver) to the Cowichan First Nation. The court said that where such title is determined to exist, it is “prior and senior” to — meaning it supersedes — other property interests, including private fee-simple title. This decision has thrown the rights of more than 150 property-owners into question and raises broader questions for the entire province. Nor was Cowichan a one-off: the courts recently awarded Aboriginal title over Nootka Island, while the provincial government continues to evade questions on the number of similar court cases pending.The B.C. and federal governments have also entered into numerous bilateral agreements recognizing Aboriginal title and/or granting management powers over various areas, perhaps most notably Haida Gwaii, an archipelago off the northern coast of B.C., where the approximately one-half of the population that is non-Haida had no say in the agreement. More recently, the federal government and the Musqueam Indian Band signed agreements regarding much of Metro Vancouver.Private property rights — the authority to exclusively possess, use or transfer an asset — are what enabled Canada (and many other countries) to emerge from the grinding poverty that characterized most of human history. They are essential to economic prosperity. British Columbia already faces sluggish business investment, weak private-sector job growth and stagnant living standards. More businesses are closing in the province than opening. And residents are leaving. Uncertainty over private property rights only deepens these economic challenges. If the situation isn’t rectified, this crisis could extend to the rest of Canada.This advertisement has not loaded yet.This advertisement has not loaded yet, but your article continues below.A new essay series that we have edited offers possible solutions to this untenable situation.Dwight Newman, Professor of Law at the University of Saskatchewan, suggests using an existing constitutional mechanism to clarify the relationship between Aboriginal title and private property in B.C. — namely, section 43 of the Constitution, which allows amendments that affect only one province. The B.C. legislature would pass a resolution then obtain recognition from the federal Parliament. This approach was used in the 1990s to replace Newfoundland’s religious school boards with a single public system. The provincial and then the federal government could, for example, pass a resolution precluding Aboriginal title claims against existing private property. A key benefit of this solution is that it could be implemented relatively quickly while awaiting other court decisions or longer-term ways to resolve the issues democratically.Internationally-recognized Indigenous lawyer Thomas Isaac proposes that governments recommit to clear, transparent and principled treaties as the primary tool to negotiate recognition of constitutionally protected Aboriginal rights. Treaties are agreements that are constitutionally protected and create binding enforceable obligations between the Crown (i.e., government) and Indigenous people. Isaac’s approach relies on existing frameworks and experience to solve the crisis but requires a re-commitment to the process by governments.Finally, Bruce Pardy, law professor at Queen’s University, suggests more fundamental — indeed, sweeping — constitutional reforms, including repealing section 35 of the Constitution, which guarantees “the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada,” revising the Charter of Rights and Freedoms, and repealing other statutes that treat Indigenous people differently than other Canadians.Canada’s prosperity rests in part on its tradition of protecting private property, but these rights have now been thrown into question. Fortunately, there are several potential solutions to restore functioning workable property rights. The status quo not being an option, British Columbians, and all Canadians, need to understand the pros and cons of different solutions.Jason Clemens and Tegan Hill, economists at the Fraser Institute, are co-editors of the new essay series, Potential Solutions for B.C.’s Property Rights Crisis. Notice for the Postmedia NetworkThis website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.