Good Sunday Morning! Issue #280

To recognize aboriginal title is not to abolish property rights, but to uphold them

Andrew Coyne
Published Yesterday

It would be hard to overstate the significance of the recent decision of the British Columbia Supreme Court in the case of Cowichan Tribes vs. Canada. Nevertheless a good many people have done their best.

“B.C. Supreme Court takes an axe to private property rights,” ran the headline on one column. The decision spelled “the end of property rights,” another declared. Other commentators limited themselves to fretting over the “risks” and “uncertainty” arising from the decision.

Which is fair enough. But however the decision was construed, or whatever consequences were foretold to flow from it, the one thing I haven’t seen anyone say is that it was wrong. I haven’t seen anyone contest the basic facts of the case. Nor, beyond a few raised eyebrows, have I seen anyone question the judge’s reasoning. The closest I have seen to a criticism of the decision was the columnist who called it “extreme.” But the justification for that epithet seemed to rest more in the predicted consequences than in any flaw internal to the decision itself.

This is very much of a piece with the reaction to other recent court rulings, and the broader narrative – the courts have run away with the Constitution – they seek to convey. When critics decry this or that example of “judicial activism,” nine times out of 10 it turns out to mean a decision they disagree with. Or rather, no: they don’t even disagree with it, as such – they just don’t like the result. It is inconvenient, and because it is inconvenient, must be wrong.

In the present case, the consequences of the judge’s decision, upholding the claims of the Cowichan Tribes and other descendants of the historic Cowichan Nation to a sizeable (roughly 800 acres) chunk of land in Richmond, B.C., are almost certainly far-reaching, though nowhere near as cataclysmic as claimed.

The territory, which the Cowichan refer to as Tl’uqtinus, is currently divided between the federal government, the Vancouver Fraser Port Authority, the City of Richmond, and some private “fee simple” owners. The territory is also claimed by the Tsawwassen First Nation and the Musqueam Indian Band, who opposed the Cowichan claim in court.

The case is the second to declare aboriginal title, first defined by the Supreme Court in the 1997 Delgamuukw case, to a specific parcel of land (the first was the Tsilhqot’in decision in 2014), and the first to find that it applied to privately owned property.

Yet the Cowichan, like the Tsilhqot’in, did not bring their claim against the private landowners, nor did they seek to invalidate their interests. Neither did the judge find that aboriginal title extinguished fee simple ownership. Indeed, it was the federal government and its fellow defendants that asserted the incompatiblity of the two.

Instead, the judge found that the two could co-exist: neither is absolute. Aboriginal title is, to be sure, “senior” to fee simple, and would burden any fee simple title. Exactly how would be left to further negotiations, notably between the Crown and the relevant aboriginal title holders.

Is that the end of property rights? Or is it the extension of it, to a group that had previously had their rights denied? The basis of the Cowichan claim, established through more than 500 days of testimony and thousands of pages of evidence, was the same as in previous cases: prior occupancy – prior, that is, to the assertion of Crown sovereignty in 1846 – along with the tests of sufficiency, continuity and exclusivity set out in Delgamuukw and refined in Tsilqot’in.

Of course, the colonial governors at the time would have taken rather a different view of aboriginal title. But they also faced the practical problem of how to establish control of the territory in the face of determined Indigenous opposition. The Cowichan, in particular, were considered to be especially warlike. They could hardly prevail against the military might of the British Empire. But they could make a lot of trouble.

So the governor of British Columbia at the time, James Douglas, made a deal. He told the Cowichan, in the judge’s paraphrasing, that “the Queen had given him a special charge to treat them with justice and humanity, so long as they remained at peace with the settlements.” True to his word, Douglas appropriated certain lands, including the village at Tl’uqtinus, as future Indian reserves.

Only it never happened. The Cowichan’s lands were later sold to settlers, without the Cowichan’s consent or even knowledge. The first purchaser was Richard Moody, whose task as Chief Commissioner of Lands and Works for the Colony of British Columbia was supposed to be “ensuring that Indian reserves were created at sites of Indian settlements.”

The sale of these lands was not only in violation, at least in spirit, of Douglas’s solemn promises, and not only in violation of his order setting aside the lands as a reserve: it was flatly illegal. Under Article 13 the BC Terms of Union admitting the territory to the federation, the province was enjoined from selling Indian settlement lands. Only the federal government could extinguish aboriginal title.

Is it inconvenient to have to acknowledge all this now, more than 150 years later? Yes it is. It would have been inconvenient to governments in the 19th century to have to abide by the promises they had made. But they put their own convenience first, and as such passed on the inconvenience to future generations – as, certainly, they did to the Cowichan. The inconvenience that the territory’s modern-day fee simple owners now face is only the flip side of the inconvenience the Cowichan have had to live with for the past century and a half.

It is sufficient to establish the Cowichan’s title to the lands that they held prior occupancy. But Douglas’s statements, and the actions of subsequent governments, speak to another matter: the Crown’s obligations, in dealing with Indigenous groups. In the wonderful language of Canadian constitutional law, they engage “the honour of the Crown.”

The British had the power to assert their sovereignty over Canada’s lands, but with that power, our courts have found, went a corresponding responsibility: to deal fairly and honourably with those they had displaced. Douglas’s pledge was both a statement of that obligation and a trigger. Having purchased the Cowichan’s cooperation, he and his descendants had an obligation to live up their side of the bargain.

That implicit bargain remains in place today. It bears emphasis how much the whole country benefits from settling these issues through the courts, as we have been doing since the Calder case in 1973 and even more so since the adoption of the 1982 Constitution, whose Section 35 recognizes and affirms “existing aboriginal and treaty rights.”

Having won a number of significant victories in court, Indigenous groups are heavily invested in the legal process, such that they are also disposed to accept the odd defeat. It is unpleasant to imagine the response were this country to follow the advice of a National Post columnist, and treat the Cowichan decision as the pretext for “modifying or outright removing Section 35 from the Constitution.”

In a sense we are all engaged in a massive experiment in Coasean bargaining. Ronald Coase won the Nobel Prize in economics, in part for his work on how conflicts over resources can be resolved via the allocation of property rights. In a world in which property rights are clearly defined – and enforceable by an impartial third party – disputes need not be decided by regulation. Rather, it is open to the parties to bargain their way to a mutually beneficial outcome.

In the canonical example, if a factory is polluting the air next to a laundry, then depending on how property rights are allocated, the factory could either pay the laundry to continue emitting, or the laundry could pay the factory to stop. It sounds abstruse, but it is the basis of, for example, modern emissions trading markets.

The process by which colonial governments compensated Indian groups in exchange for recognition of the Crown’s sovereignty, whether by setting aside land or signing treaties or other inducements, rather than simply taking them by force, might be thought of as a crude form of Coasean bargaining.

Only the process wasn’t the kind of symmetrical bargaining relationship Coase’s theorem envisaged. Rather than each side holding property rights defined by a common set of laws, the Crown did not recognize aboriginal title, certainly not to the point of being bound by it. And, crucially, there was no independent adjudicator to enforce any settlement. The Crown decided whether the Crown had lived up to its commitments.

The modern era of Crown-Indigenous relations that began with Calder might be thought of as a resetting of negotiations on more genuinely Coasean lines. Section 35, aboriginal title, the honour of the Crown, all have served to put the bargaining on more equitable footing. Whatever else that may be, it is not the end of property rights. It is, arguably, a new beginning.