Mayor to residents: someone else might own your home

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Imagine opening the mail and finding a letter from your mayor informing you that the house you thought you owned might not be yours.

Many of you are likely laughing at the thought. But there are homeowners in the city of Richmond, B.C., who would be able to tell you what it feels like.

Recently, Richmond Mayor Malcolm Brodie sent a letter to homeowners in an area of the city affected by a recent B.C. Supreme Court land claims decision. That August ruling, by Justice Barbara Young, found that the Cowichan Tribes had Aboriginal title to a broad swath of the city’s land running along an arm of the Fraser River. This is land upon which fee-simple title – private ownership – is held by various entities, including homeowners.

The Crown, it should be noted, did not attempt to argue that Aboriginal title was extinguished when private ownership was created by the government in the 1800s. This week, however, B.C. Attorney-General Niki Sharma said in the legislature, “A private property right sits above [Aboriginal] title.” If that is the case, why didn’t she argue that in the Cowichan case?

Andrew Coyne: To recognize aboriginal title is not to abolish property rights, but to uphold them

Meantime, Justice Young left it to the Cowichan and the federal and B.C. governments to work out how the First Nation would be compensated. Instead, the B.C. government announced it would appeal.

That’s where things stood until details of Mr. Brodie’s letter became public on the weekend. The letter, which included a map of the area affected by the decision, advised homeowners of an upcoming public meeting to discuss the ruling’s ramifications.

“For those whose property is in the area outlined in black, the court has declared Aboriginal title to your property which may compromise the status and validity of your ownership,” the letter says.

There are dozens of homes in the area outlined in Mr. Brodie’s map. Can you imagine being one of those homeowners who, for whatever reason, needed to sell now? Unless you were prepared to let it go at a magnificent discount, you would likely not find a buyer.

It’s been quite something to watch the B.C. government’s response to it all. Premier David Eby has been quick to reiterate that the government will fight the ruling at appeal and said he sympathized with those who are upset about what the decision means for their property rights. Yet, this is the same government that was in court recently lending its authority and full support on another land claims matter that has equally far-reaching implications.

On Sept. 5, the B.C. Supreme Court issued an order granting the Haida Nation Aboriginal title over the entirety of Haida Gwaii, including private property and all Crown land. The ruling followed an application to the court by the Haida for consent on Aboriginal title. In other words, the Haida wanted title affirmed and protected under Section 35 of the Constitution. That way, it couldn’t be reversed by a government hostile to the notion of Aboriginal title and reconciliation. The B.C. and federal governments happily pledged their support to the idea, making it easy for the judge to offer his approval in writing.

Gary Mason: A land-claims ruling shakes the foundation of property rights in B.C.

It’s important to note here that this entire matter was completed with few knowing much about it. It was only when the Vancouver Sun’s Vaughn Palmer got his hands on a transcript of the oral argument in the case that it all went public. It’s unfathomable that such a consequential decision would have been made in the absence of any input or discussion with key stakeholders such as the British Columbia public.

It led to this absurd situation: Mr. Eby publicly pledging to file an appeal of Justice Young’s decision recognizing the Cowichan’s Aboriginal title over land in Richmond, the day before the Supreme Court offered constitutional protection to the Haida’s Aboriginal title over the entirety of Haida Gwaii with the B.C.’s government’s assistance and blessing.

You can’t have it both ways, Mr. Premier.

It doesn’t matter much if today’s Cowichan leadership says it has no desire to kick people in Richmond out of their homes. That might be their position right now, but what if that nation’s leadership changes, and its priorities and positions change along with it? The same goes with the Haida. If they own all the land in Haida Gwaii, private and otherwise, they own it – and therefore can do whatever they want with it.

That’s not being alarmist – that’s being a realist.

Of course, treaties were supposed to settle all of this, but they have been hard to come by in B.C. Maybe most of the First Nations have been waiting for their bargaining position to improve. It has, dramatically, and no land acknowledgement statement will change that.

The implications for the province are extraordinary.