OP-ED: Judges are remaking constitutional law and Canadians’ property rights are the collateral damage

Peter Best writes, "The worst thing that can happen to a property owner isn’t a flood or a leaky foundation. It’s learning that you don’t own your property – that an Aboriginal band does."

Source: Wikimedia Commons

By Peter Best

The worst thing that can happen to a property owner isn’t a flood or a leaky foundation. It’s learning that you don’t own your property – that an Aboriginal band does. This summer’s Cowichan Tribes v. Canada decision presented property owners in Richmond B.C. with exactly that horrible reality, awarding Aboriginal title to numerous properties, private and governmental, situated within a large portion of Richmond’s Fraser River riverfront area, to Vancouver Island’s Cowichan Tribes. For more than 150 years, these properties had been owned privately or by the government. The Cowichan Tribes had never permanently lived there.

But B.C. Supreme Court Justice Barbara Young ruled that because the lands had never been formally surrendered by the Cowichans to the Crown by treaty, (there were no land-surrender treaties for most of B.C.), the first Crown grants to the first settlers were in effect null and void and thus all subsequent transfers down the chain of title to the present owners were defective and invalid.

The court ordered negotiations to “reconcile” Cowichan Aboriginal title with the interests of the current owners and governments. The estimated value of the property and government infrastructure at stake is $100 billion.

This ruling, together with previous Supreme Court of Canada rulings in favour of the concept of Aboriginal title, vapourizes more than 150 years of legitimate ownership and more broadly, threatens every land title in most of the rest of B.C. and in any other area in Canada not subject to a clear Aboriginal land surrender treaty.

Behind this decision lies a revolution – one being waged not in the streets but in the courts.

In recent years Canadian judges, inspired and led by the Supreme Court of Canada, have become increasingly activist in favour of Aboriginal rights, in effect unilaterally amending our constitutional order, without public or legislative input, to invent the “consult and accommodate” obligation, decree Aboriginal title and grant Canadian Aboriginal rights to American Indians. No consideration of the separation of powers doctrine or the national interest has ever been evidenced by the Court in this regard.

Following the Supreme Court’s lead, Canadian judges have increasingly embraced the rhetoric of Aboriginal activism over restrained, neutral language, thus sacrificing their need to appear to be impartial at all times.

In the Cowichan case the judge refused to use the constitutional and statutory term “Indian,” calling it harmful, thereby substituting her discretion for that of our legislatures. She thanked Aboriginal witnesses with the word “Huychq’u”, which she omitted to translate for the benefit of others reading her decision. She didn’t thank any Crown witnesses.

What seems like courtesy in in fact part of a larger pattern: judges in Aboriginal rights cases appearing to adopt the idiom, symbolism and worldview of the Aboriginal litigant. From eagle staffs in the courtroom, to required participation in sweat lodge ceremonies, as in the Supreme Court-approved Restoule decision, Canada’s justice system has drifted from impartial adjudication toward the appearance of ritualized, Aboriginal-cause solidarity.

The pivot began with the Supreme Court’s 1997 Delgamuukw v. British Columbia decision, which first accepted Aboriginal “oral tradition” hearsay evidence. Chief Justice Lamer candidly asked in effect, “How can Aboriginals otherwise prove their case?” And with that question centuries of evidentiary safeguards intended to ensure reliability vanished.

In Cowichan Justice Young acknowledged that oral tradition hearsay can be “subjective” and is often “not focused on establishing objective truth”, yet she based much of her ruling on precisely such “evidence”.

The result: inherently unreliable hearsay elevated to gospel, speculation hardened into Aboriginal title, catastrophe caused to Richmond private and government property owners, the entire land titles systems of Canadian non-treaty areas undermined, and Crown sovereignty, the fount and source of all real property rights generally, further undermined.

Peter Best is a retired lawyer living in Sudbury, Ontario. The original, full-length version of this article was recently published in C2C Journal.