A recent B.C. Supreme Court decision stacks Indigenous land claims against private property rights, and Vancouver lawyer Thomas Isaac lawyer says the ruling could have real implications for private property owners in that province.
A decision was delivered on Aug. 7 following the longest trial in Canadian history, awarding Aboriginal title over a swath of land in Richmond, B.C. to the Cowichan Nation, as well as fishing rights in the Fraser River.
The land at the centre of the decision is owned by the federal Crown, the Vancouver Fraser Port Authority, the City of Richmond, and private third parties. Owners of homes and private businesses in that area were not the intended target of the court action, and no declaration was made that directly affects them now.
Isaac, a nationally-regarded specialist in Aboriginal law and partner at Cassels Brock & Blackwell LLP, said the decision “fundamentally upends” the land title system.
“There are very serious implications flowing from this decision if it were to be upheld on appeal,” he told Real Estate Magazine.
On Monday, B.C.’s Attorney General Niki Sharma pledged to appeal the decision, citing the possibility of “unintended consequences” resulting from the ruling.
“I think everyone with property in areas that may be subject to Aboriginal title claims, which isn’t restricted to British Columbia, needs to pay attention,” said Isaac.
What the ruling means
Isaac says the ruling boils down to two things. First, the court has said that Aboriginal title can be declared on private property. Second, if Aboriginal title is found, First Nations can seek to have that land transferred to them by going through the courts.
“Up until last Thursday, you could rely on the land title system. You have a fee simple property in British Columbia, you could essentially take it to the bank,” he said.
Now, he says, the Sword of Damocles – essentially a looming threat – hangs over property owners in affected areas.
“What (the judge) is saying is that until they go to possess your land, you’re not affected.”
“Go tell the bank that.”
Isaac says the decision challenges the proposition that you can trust being given title to a property by the government.
“Much of our entire economic system is based on that. People get mortgages, and people have lines of credit for their businesses in many instances. They’re based on security in what? Real estate.”
“So now if you have a court saying, ‘That isn’t the highest form of land title anymore,’ the consequence of that is significant.”
Courtney Zwicker is a digital reporter and associate editor for REM. Based in Atlantic Canada, she has over a decade of experience covering daily business news.
So does this mean we can go back to Europe and start a land claim now?
if successful, the APS (offer) will need some kind of disclaimer in the fine print or schedule A to protect buyers, sellers and our butts as well.
I watched a TV special on the subject in the early ’80’s and the tribes in BC had been asked what was their territory. Almost 350% of the province had been claimed. Most were wanderers – so how can there be defined claims?
Very confusing….
There was never a referendum on this process for the Canadian citizens – the press never really covered what was going on behind closed doors. Taxpayers have been supporting first nations for generations and despite all the supports, there is no end in sight for that either.
95% of the population has been compromised.
The government cannot guarantee anything these days.
What exactly is a right for a private property?
If someone doesn’t pay property taxes, it can be seized.
If someone doesn’t pay mortgage, it also can be seized.
So, what is private property?
Who owns what?
For the longest time I have been thinking about it.
If there is a property that has an owner on title, but the bank holds a mortgage on the same property, technically owns a share of the same property ( most of the time it is substantially bigger than owner’s at the beginning). Then why property tax is paid only by the owner ? Why bank doesn’t pay its share ( at the beginning it is substantially bigger)
I know it is set up this way in ages?
But, why no one is challenging this status quo?
Maybe I don’t understand something and it is ok.
But why?
It all comes down to ownership and there are fundamental flaws in all this picture, especially when property tax and LTT were introduced as a temporary measure. Where I am wrong?
Fee simple in Land: in Canada (where a Crown Treaty with the autocthonous peoples exists) it is the ‘amount’ of ownership the Crown (or agents of) sell to occupier/users.
It is not an ‘allodial’ interest, it is not-absolute and it always favour the Crown (escheat, expropriation etc)
It is NOT the same system as in the USA.
The Courts were given the task of settling the province-by-province mess with the Calder decision in 1973- PM Trudeau #1 stopped fighting for land rights and concentrated on getting his Pet Project approved without regard for future (foreseeable) consequences.
Let’s hope this is the eye-opener that prompts Fee Simple landowners to demand transfer of the “Crown’s Interest” to the existing owner.