OP-ED: Disputed Aboriginal land claims reshaping property rights in Canada
Hymie Rubenstein writes, "Court rulings on Aboriginal title raise serious questions about how much control you really have over your property."
By: Hymie Rubenstein
Hymie Rubenstein is a retired professor of anthropology at the University of Manitoba and a senior fellow at the Frontier Centre for Public Policy.
Ottawa’s new agreement with the Musqueam Indian Band recognizes sweeping and disputed territorial claims across Metro Vancouver and could ultimately affect private property rights in other parts of Canada.
According to a Feb. 20, 2026, Canadian government news release, “The Musqueam Indian Band and the Government of Canada signed three landmark agreements that recognize Musqueam’s Aboriginal rights and strengthen Musqueam’s roles in fisheries, stewardship and marine emergency management.”
But these “Aboriginal rights” include rights to territory that the Musqueam people in B.C. may not have exclusively occupied.
The news release also stated, “The Musqueam people have been stewards of their traditional territory since time immemorial.” But similar claims have been made by other Indigenous groups with their own oral histories who have lived in the same area for centuries.
Musqueam “traditional territory and waters” are now said to span a territory worth billions of dollars, stretching from central Vancouver to about 60 kilometres north of the city. That includes claims to what are now called Vancouver, Burnaby, Richmond, New Westminster, Delta, North Vancouver, West Vancouver, Surrey, University of British Columbia Endowment Lands, Vancouver International Airport, and Coquitlam.
The three “landmark agreements” are grounded in a declaration of rights passed by the Band in 1976, in which the Musqueam claimed the right to travel across this region’s land and waters “without foreign [read: Canadian] control or restriction,” and to consume the area’s natural resources regardless of legal restrictions.
The government of Canada now appears to recognize these boundaries based on oral histories held by different Indigenous groups, an issue that could be challenged in court. If those disputed claims are ultimately upheld through negotiation or litigation, they could affect how legal rights apply to lands that already include established private property.
Meanwhile, the Musqueam “Nation” already has three reserves, comprising 628 acres, for 1,435 Musqueam members.
Still, the Band’s leadership has proclaimed that, “We have never considered the bits of land called ‘Indian Reserves’ as compensation for our lost rights and cannot consider that as adequate compensation,” the document says, suggesting that some views of Indigenous reconciliation include ongoing claims for restitution.
According to the Band’s website, “Musqueam’s ancestors have lived throughout and stewarded the Fraser River estuary shown above for thousands of years.”
But this may not reflect exclusive occupation because other Indigenous groups also occupied this territory over time. The Musqueam has overlapping and/or shared territory with several of its Aboriginal neighbours, including the Kwikwetlem, Squamish, Tsawwassen, Tsleil-Waututh, and Cowichan.
Thomas Isaac, chair of the Aboriginal law group at Cassels Brock & Blackwell LLP, claimed, “It is, from a process point of view, it’s … absolutely unacceptable that public democratic governments are entering into agreements acknowledging Aboriginal title in any form when it’s an exclusive right to land, according to the Supreme Court of Canada, without consulting in some way with their constituency, which is the public,” Isaac said.
Still, this agreement creates no new land transfers, no financial settlement, and no treaty.
According to both Ottawa and Musqueam, it will have zero impact on private property or fee-simple titles (at least as of now) but commits both parties to future “side agreements” that could have implications for homeowners.
In response to questions about the agreement, Chief Wayne Sparrow of the Musqueam Indian Band told Global News that it does not include private properties in that region. A spokesperson for Crown-Indigenous Relations Canada confirmed this position, telling Global News that:
“The Incremental Recognition Agreement provides general recognition that Musqueam has Aboriginal rights and title within their Territory and establishes a framework for ongoing discussions and future negotiations to define how and where those rights and title could apply.”
The Musqueam Agreement comes amid increasing polarization after the B.C. Supreme Court recognized Cowichan Aboriginal title over parts of Richmond and declared that historic Crown grants of fee simple and other interests can be an unjustified infringement of that title, even where today’s owners were never served or named in the case.
In that ruling, the court found Aboriginal title could apply over lands where private interests already exist, creating legal uncertainty for property owners.
That Court did not void private titles, but it held Aboriginal title is a “senior” interest that can burden the land and said key Land Title Act protections like indefeasibility do not apply against it, while also suggesting Aboriginal title and fee simple can “co-exist” only in a limited, reconciled way where one must ultimately yield.
If the courts follow the same path, today’s recognition of disputed claims could shape how private property rights are applied beyond British Columbia.
I should have noted that the claim “The Musqueam people have been stewards of their traditional territory since time immemorial” is based on questionable hearsay evidence -- statements made outside of court that are presented in court to prove the truth of the matter asserted -- a form of documentation normally considered inadmissible unless it meets very specific exceptions recognized by law.
These exceptions have been expanded by woke judges to include unsubstantiated indigenous oral history based on the premise that Canada's aboriginals, unlike all other people, never prevaricate, distort, misinterpret, forget, or exaggerate.
The hearsay evidence in cases like these, even if truthful, originated hundreds of years ago and was passed down orally from generation to generation by people without a written language. Illiteracy is all the more reason to doubt their accuracy, given that oral history, even if this "history" is only a few minutes long, is subject to change whenever it is repeated, as a wealth of scientific evidence has shown (see https://duckduckgo.com/?t=ffab&q=oral+history+is+fallible+&atb=v322-1&ia=web).
Oral history = because I said so. Yes, let's put the issue of private property rights in the crosshairs of activists judges using the "because I said so" standard of evidence and upend fee-simple titles we have all assumed confer ownership. And how many years will it take to sort out the various oral history-based claims among competing Indigenous groups? Canada is not a serious country.