Mr. Speaker, last week I raised an issue of deep concern to the people of British Columbia, namely the impact of the B. C. Supreme Court decision in Cowichan Tribes v. Canada and the impact that the decision has on private property rights.
It is a significant ruling, because it is the first time in Canada's history that a court declared aboriginal title over non-Crown lands, privately owned lands. There have been other aboriginal title cases in British Columbia before, and I am going to highlight one of them, the Tsilhqot’in Nation case of 2014. The court declared aboriginal title over a very large piece of land, 1,750 square kilometres. It was very remote land and it was all Crown land. The Tsilhqot'in plaintiffs in that case were very careful to carve around all the privately held land, so that the claims area was only public land. That was their strategy.
Fast-forward a decade to the current case, and the Cowichan plaintiffs took a different, more aggressive approach. Their claims area does include privately owned lands. We are talking about a relatively small piece of land, not 1,750 square kilometres but 800 acres. It is right in the heart of Metro Vancouver and, as any realtor would say, the three most important things about real estate are "location, location, location".
The morning after the decision, 150 private landowners, farmers, homeowners, businesses and a golf course discovered that their titles were now burdened with the aboriginal title designation. That is what makes this decision so unique. It has never happened before in Canadian history.
This is why I say that the Liberals dropped the ball. Instead of arguing aggressively to defend private property rights, federal counsel, under the direction of then attorney general Jody Wilson-Raybould and then prime minister Justin Trudeau, retreated from their strongest legal defence. This is what the court said in paragraph 2096, “Canada initially pled extinguishment but abandoned its reliance on this defence in its amended response to civil claim filed November 22, 2018.”
The Liberal strategy was to drop its first and best line of defence, that the Crown's deliberate granting of fee simple title to private individuals throughout British Columbia's history had the effect of extinguishing pre-existing aboriginal title. They did not argue that, making it easy for the trial judge to find that aboriginal title still exists on all parcels, including private lands, within the claim area, and that aboriginal title and privately held fee simple title could co-exist on the same piece of land.
Many legal experts have weighed in on that, saying that it does not work, and asking how two title owners could have exclusive and competing interests over the same title. Who wins?
The judge's answer was that “Aboriginal title is a prior and senior right” to other property interests, whether the land is public or private. That is what has people worried. Who actually owns the land?
I will ask the question again. Will the new Liberal Prime Minister direct the federal lawyers to argue that private property rights in Canada must be secured for homeowners, farmers, businesses and investors?