In British Columbia, property rights are facing significant challenges. The B.C. Supreme Court recently ruled that Aboriginal title exists on 800 acres of land in Richmond, a suburb of Vancouver. The court stated that Aboriginal title is "senior and prior" to fee simple interests, raising concerns about the implications of this decision. As a result, Aboriginal title claims are gaining increased attention, with Kamloops and the Sun Peaks ski resort being notable targets for such claims.

The B.C. government has also been actively conferring Aboriginal title throughout the province. It has entered into agreements, including those on Haida Gwaii, to transfer control over land use. This situation has been attributed to actions taken by both the courts and the government. The framers of Canada’s 1982 constitution did not include rights to private property. However, they did guarantee existing Aboriginal rights and title at the last moment. Over the years, the Supreme Court of Canada has broadened the scope of these rights, culminating in the recent Richmond decision.

This decision is currently under appeal, first to the B.C. Court of Appeal, and potentially to the Supreme Court of Canada, a process that could take years. The federal government has also played a role in this crisis. In 2015, the Trudeau administration committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which asserts that Aboriginal groups have the right to own, use, develop, and control lands they traditionally occupied. In 2019, the B.C. legislature incorporated UNDRIP into provincial law through the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which mandates that B.C. law align with UNDRIP.

The current situation raises questions about potential solutions. Amending the Canadian constitution is a complex process, and repealing the section on Aboriginal rights would be extremely difficult. Similarly, adding guarantees for private property rights to the Charter is unlikely. Recently, a law professor proposed an alternative approach. He suggested using Section 43 of the constitution, which allows for amendments that apply to specific provinces. This could enable British Columbia to prioritize private property rights over Aboriginal title, provided both the provincial legislature and the federal Parliament agree.

However, the effectiveness of Section 43 remains uncertain. Previous amendments using this section have been minor adjustments rather than significant changes. The Supreme Court has not yet clarified how Section 43 can be applied, leaving its potential use open to interpretation. Even if Section 43 could be utilized to address property rights, it would require cooperation from both the provincial and federal governments, as well as approval through a referendum in B.C.

The B.C. and federal governments have contributed to the current property rights crisis and appear unlikely to disrupt the constitutional framework they have established. There are simpler alternatives available, such as reversing support for UNDRIP or repealing DRIPA, but these actions are not anticipated from the current administrations. The ongoing situation highlights a broader issue in Canada regarding property rights and Aboriginal claims, which are deeply embedded in the nation’s culture and legal framework. Critics argue that legal rights should not be contingent on lineage or group affiliation, advocating for a system where laws apply equally to all individuals and their property.