Kent McNeil is an Emeritus Distinguished Research Professor at Osgoode Hall Law School in Toronto. He lives in British Columbia.
The fragility of private land rights in British Columbia is not often discussed – but it should be.
The issue dates back to the 1850s, when colonial governments abandoned governor James Douglas’s policy of signing land-cession treaties with Indigenous nations on Vancouver Island. The colonial attitude, and that of the province after it entered Canada in 1871, was that the Indigenous nations had no rights to the lands they had occupied for thousands of years. British Columbia acted as though it owned all the land not designated as federal land, and granted private land rights as though Aboriginal title did not exist.
Even after the Supreme Court of Canada decided, in the 1973 case of Calder v. British Columbia, that Aboriginal title exists as a legal right, the province relied on the opinion of three of the judges that this right had been extinguished by legislation. That dubious position was proven untenable in 1997 by the Supreme Court’s Delgamuukw decision, which held that the Indigenous nations have Aboriginal title to lands exclusively occupied by them when Britain asserted sovereignty over British Columbia in 1846.
The court also ruled that the province has lacked the constitutional capacity to extinguish Aboriginal title ever since 1871. As a result, former justice Mary Southin of the BC Court of Appeal subsequently noted that Aboriginal title hovers as a “cloud” over private land rights in the non-treaty areas of the province. In reality, the B.C. government has never had the legal authority to extinguish Aboriginal title by creating private rights inconsistent with it.
Attempts to uphold private rights through the application of provincial laws, such as statutes of limitation, run into the same problem: these laws cannot privilege private rights over Aboriginal title, because the province has never had the capacity to extinguish Aboriginal title in the first place. This is a necessary consequence of the Delgamuukw decision.
So how is this conflict between Aboriginal title and private land rights to be resolved? This question lies at the heart of Canada’s desire to make amends for past wrongs and achieve reconciliation.
One way forward is suggested in the Haida Title Agreement, entered into by the Haida Nation and the British Columbia government in April. In it, the province recognizes Haida Aboriginal title to Haida Gwaii, and the Haida Nation consents to honouring private property rights. This agreement actually provides private rights with more legal protection than they previously enjoyed, because it removes the cloud of uncertainty created by the Haida’s previously unresolved Aboriginal title claim.
The agreement, however, does not deal with the issue of how to address the legal wrongs committed when these private interests were created. The provincial government is responsible because, in issuing grants to lands that are subject to Aboriginal title, it acted without legal authority. As these grants were invalid, the recipients would have entered as trespassers without realizing it. But because they weren’t conscious wrongdoers, as they relied on the government’s purported authority, it should be up to the government to right these wrongs.
Dispossessing the current beneficiaries of government land grants would not be just, especially when the land has passed through numerous innocent hands. Instead, compensation should be paid to the Indigenous nations concerned. In Canadian law, anytime a government expropriates land, compensation must be paid. This is the case even when expropriation is lawfully exercised for public purposes such as roads. When land has been unlawfully taken and cannot be returned, the case for compensation is even stronger. Moreover, compensation for the past taking of Indigenous lands is mandated by the United Nations Declaration on the Rights of Indigenous Peoples, which the B.C. legislature has affirmed applies in the province.
Some may balk at the cost of compensating Indigenous nations for the wrongful taking of their lands, as the burden will ultimately fall on all of us as taxpayers. However, the reality is that we have all benefitted – and continue to benefit – from these takings. A large part of the wealth of this country comes from the rich lands and abundant natural resources that once belonged to the Indigenous nations. They have shown remarkable generosity toward us as newcomers, agreeing in treaties to share their lands with us. Where lands were taken without their consent, it is only right that fair compensation should be paid. Reciprocal sharing and reconciliation demand no less.