Articles, Op-Eds, Letters to the Editor

Les Leyne’s column (“NDP and Conservatives both banking on LNG”) helpfully explained that the NDP and the Conservatives are identical in their passionate support for LNG.  It allowed readers to join the dots and reach a final conclusion on their own, namely:  if you don’t care that burning more fossil fuels will lead to worse climate change, then vote NDP or Conservative, but if you do care, then don’t vote for either one of them!

Anyone whose opinion about LNG exports is based solely on what they read on billboards along the Pat Bay Highway might think that LNG is a “clean” fuel and that we’re doing the rest of the world a favour by sending it to them.  In reality, LNG is as bad for the climate as coal, and when our governments subsidize it, that prevents the adoption of cheaper, cleaner alternatives in the countries that buy it.  Here in BC, we’re like drug dealers that claim that they’re “just meeting a demand” and don’t care about the harm their products cause.

Again, though, if you don’t care, then vote NDP or Conservative.  Maybe you might even want to explain to your children or grandchildren why that’s your choice.  After all, whether or not they inherit a livable planet is in your hands when you fill out your ballot.

A statistic frequently cited (including recently in this newspaper) by those who argue that Canadians should neither reduce their own use of fossil fuels nor stop exporting fossil fuels that are then burned elsewhere is that Canada is only responsible for 1.4% of the world’s greenhouse gas emissions.  Their argument is that the remaining 98.6% of emissions would continue unabated, so that humanity is doomed anyway and there is no obligation on Canadians to do anything to avert that outcome.

This argument is what the British would call “dodgy”.

Since Canada only has 0.5% of the world’s population, it doesn’t take much thought to realize that our being responsible for 1.4% of climate-changing emissions means that we are polluting at a rate that is almost three times the global per capita average.  And it only takes seconds to do an Internet search that shows that Canada is the 13th-largest emitter of greenhouse gases among the world’s 195 countries, despite our relatively small population.  Given that, it might seem obvious that Canadians have a much greater obligation than people in other countries to eliminate fossil fuels rather than a lesser obligation.  So why don’t some people think so?

By way of comparison, consider the situation in September of 1939.  Like today, Canadians only made up 0.5% of the world’s population, and at that time Canada had only ten thousand full-time military personnel, so it would have been just as easy then, as now, to ask “why should Canadians bother” to get involved in a struggle to which we could arguably only make a small contribution.  Then, as now, there were those who thought that Canada should refrain from taking any action, and their views had prevailed throughout the 1930s, despite events such as the conquest of Ethiopia, the reoccupation of the Rhineland, the signing of the Tripartite Pact, and widespread antisemitic violence.  Prime Minister King had even sent Neville Chamberlain a congratulatory telegram upon the signing of the Munich Agreement in 1938.

When the need for action finally became undeniable, however, most Canadians did not doubt that Canada and Canadians had a responsibility to contribute.  By 1943, 494,00 Canadian men and women had shown their commitment by volunteering to serve in uniform and Canada’s contribution to the war effort was decisive.  So — given that only a fringe minority can still believe that human-caused climate change is not a problem demanding urgent action – what is different now?

Perhaps some people have lost the ability to believe in collective action, or even to perceive that they are a part of a greater whole.  They have become the sort of individuals who don’t vote because their votes “don’t matter”, the kind who justify tossing trash and cigarette butts out of their car windows by arguing “other people” will even if they don’t.

When such people say that it’s China or the USA that should fight climate change, they fail to realize that in those countries and in every other country on Earth, there are people actively working to prevent climate change from getting worse.  In every country, people are promoting the transition from fossil fuels to clean energy.  Canadians can undercut those efforts by exporting government-subsidized fossil fuels that otherwise could not compete with cheaper, cleaner technologies and by failing to make changes here at home.  Or, as in the great, global struggles of the past, Canadians can play our part.

As an alternative to the “1.4% Fallacy”, one way to think about our individual responsibilities with regard to climate change would be to imagine a vast field above which is suspended a very long rope which two teams of people are using for a tug of war, with children in the stands spectating.  One of the teams consists of all those people who drive gasoline-powered cars, who have oil furnaces and gas stoves, whose vacations involve cruise ships and jets to faraway destinations, and who vote for politicians that promote new pipelines.  The other team is made up of people who do the opposite, who get around on foot or by bicycle or using transit or driving electric cars, who have heat pumps in their homes, who contact their politicians to tell them they oppose pipelines.

Envisioned this way, the important thing to remember is that no one has to remain part of their original team.  The only question for individual Canadians then is:  what team do you want to be on?

It’s unsurprising that a letter-writer worried that the lithium-ion batteries in Lime bicycles could catch fire.  Battery fires tend to get reported in the news because batteries are so safe that when they do catch fire, they have a “man bites dog” appeal to editors and reporters.  As well, the fossil fuel industry has an interest in making people think that batteries are more dangerous than gasoline and diesel.

 In fact, Statistics Canada estimates that there are 10,000 vehicle fires in Canada in each year, almost all of which involve gasoline or diesel-powered vehicles, and those are generally not even considered newsworthy.  After all, what’s surprising about a tankful of highly-flammable gasoline catching fire, or even exploding if any of that gasoline vaporizes?

Think about it:  would you really be willing to carry a mobile phone in your bag or pocket if it was powered by a little tank of gasoline instead of a lithium-ion battery?  So why, given that gas-powered cars are estimated to be more than 60 times as likely to catch fire than EVs, would you worry more about battery-powered vehicles rather than fossil fuel-powered ones, let alone bicycles?

It was somewhat gratifying to read Stephen Hammond’s article explaining how the City of Victoria ended up contracting with a US company for a bike sharing service at a time when patriotism demands that Canadians boycott US goods and services.  The decision itself is still disappointing, but at least one member of Council recognized that a mistake had been made and felt an obligation to inform voters of how it had happened.  Regrettably, most elected officials don’t feel any need to account for themselves or answer to voters between elections.  Hammond, however, has distinguished himself not just on this occasion, but also by his independence and sensible voting record over the past four years, so I intend to vote for him on October 17th.

The only other incumbent on council who I currently expect will get my vote is Marg Gardiner.  When I write to the Mayor and Council (which I do quite often), she is the only one that replies!  Her record also shows good sense and an absence of “groupthink”.

Of the other current members of Council, only one has previously expressed views so abhorrent as to guarantee not getting my vote, but none have earned it either.  I expect many Victoria voters will be as puzzled as I am about whether any deserve to be re-elected.

Orange skies and unbreathable air in Toronto followed by massive destruction in Spain and France and then this week’s fires in Spokane, Vernon, and other places nearby will have prompted feelings of cognitive dissonance for some Canadians.  On the one hand, no one enjoys coughing, stinging eyes, clothes that reek of smoke, or the prospect of losing their homes to wildfire.  On the other hand, our governments — with our support — are moving to build more pipelines so that fossil fuels can be burned at a faster rate, climate change can be accelerated, and we can have more such incidents.  It may seem as if something isn’t right.

Survey results add to the confusion.  In Statistics Canada data released last month, over half of Canadians reported being “very” or “extremely” concerned about climate change.  An Angus Reid poll, however, indicated that 63% of Canadians support a new bitumen pipeline from Alberta to the west coast.  How can most Canadians simultaneously be at least “very” concerned about climate change and also supportive of a project that will worsen climate change?

To reconcile opinions that seem mutually inconsistent, remember that in the early 1980s, awareness that burning fossil fuels was changing our climate went from being something only possessed by scientists (who had known since 1896) and those in the fossil fuel industry (who knew since 1954) to being something that everyone knew about.  Although I am not a scientist, even I knew enough that I wrote a guest editorial for Monday magazine in 1985 warning that CO2 emissions would result in catastrophic climate change.

Rather than halting or reducing carbon emissions in the past forty years, however, humanity has doubled the amount of carbon in the atmosphere.  During this era when we all knew about climate change and its causes, Canadians have “punched above our weight” in contributing to it, since our per-capita rate of greenhouse gas emissions is three times the global average and Canada is the only G7 nation whose emissions have risen substantially since 1990.

Canada is a democracy with a free-market economy, so our increased greenhouse gas emissions haven’t just happened; instead, over the last four decades we have consistently made choices that led to increasing Canada’s production of fossil fuels.  In the 2025 federal election, over 91% of votes cast were for the three national parties that supported more fossil fuel extraction rather than less.  Given that, is there an explanation for why a nation supposedly so concerned about climate change is also a nation that supposedly wants to see more fossil fuels burned?

Maybe we lie on surveys.

Instead of saying “lie”, one could say that we mentally adjust the questions so that we can answer them in a way that lets us think of ourselves as decent people.  So, when we say we’re “very concerned” about climate change, what we mean is that we know it’s a serious problem.  Mostly, though, it’s a serious problem for poor people who can’t afford air conditioning, or for people who live closer to the equator than we do, or for people who will live in the future, such as our children and grandchildren.

For most of us in Canada now, though, a few days or weeks of bad air aren’t enough to result in us actually doing anything to prevent climate change, at least anything that might reduce the GDP or be inconvenient.  Yes, we’re “very concerned” about climate change, but we won’t do anything about it that might cost us something.  But we can’t say that in our answers to pollsters, because the consequences of climate change are so horrific that not caring would make us seem like bad people.

“No”, some will object, “We really are genuinely concerned about climate change.”  Please!  If Canadians cared about climate change, would almost 95% of our cars and trucks still run on fossil fuels?  And wouldn’t people take two minutes to write an email or postage-free postcard telling the Prime Minister they don’t really want new pipelines?

The genius of our political leaders is knowing not to believe Canadians care about climate change.  They propose new pipelines because they think that’s what we really want, even if we won’t admit it.  Like Michelangelo seeing the angel in the uncut marble, our leaders perceive the complacency beneath the skins of supposedly compassionate Canadians.

Why, though, should politicians have to engage in this charade?  Let’s either admit that we really don’t care or start proving that we do.

Recent letters argue that the 1850 Douglas Treaties are invalid and that Aboriginal title — the right to exclusive use and occupation of land — still exists to all of Greater Victoria.  This is despite the Supreme Court of Canada having ruled in 1965 in White and Bob that an identical document respecting Nanaimo was a valid treaty.

The headline to one letter asserted that “Giving up all that land would make no sense”, particularly “to 150 newcomers who at that time occupied only a few dozen acres around what is now downtown Victoria”.

The fact that there were only 150 newcomers may have made it seem unlikely that selling rights to the land would result in any short-term changes, particularly since Governor Douglas had assured them “that they would not be disturbed in the possession of their Village sites and enclosed fields…and that they were at liberty to hunt over the unoccupied lands, and to carry on their fisheries with the same freedom as when they were the sole occupants of the country.” As well, after the last time Europeans had visited Vancouver Island, they had disappeared again for half a century. How could anyone be expected to have foreseen the changes and growth their reappearance would bring?

We take land ownership so much for granted that we can fail to understand people to whom a relationship to land and the right to harvest its resources were important rather than the ownership of land itself.  We should respect their perspective and their agency.

Recent weeks have seen claims made in Victoria about whether there exists a right to hold protests in the streets and whether the City is obligated to actually facilitate such protests.  What does the law say about this?

Three sources of law are relevant, namely:  statutes and regulations; common law; and the Canadian Charter of Rights and Freedoms.

The Victoria Streets and Traffic Bylaw (No. 09-079). S. 99 is as follows:

Procession in street requires permit

99 (1) A person must not be a member of or take part in a procession through, in, on,

over or above a street unless a permit for the procession has been issued under

an order of the Director of Engineering.

(2) For safety purposes, the Director of Engineering may impose terms and

conditions on a permit issued under this section.

On the face of it, then, anyone who holds a protest march on the street without a permit is breaking the law.  While the Director of Engineering — like any other government decision maker — has a duty to act fairly and reasonably when deciding whether or not to grant a permit, they are not required to issue a permit to every person or group that wants one.

Does the common law recognize a right to hold protest marches in the street?  No, just the opposite.  A case in point was R. v. Engler, in which the Calgary Branch of the Canada-Chile Solidarity Group was denied a permit for a protest march but held the march anyway.  In reasons upholding the conviction of the protest organizers, the Appellate Division of the Alberta Supreme Court quoted from an earlier decision of the Supreme Court of Canada:

Demonstrations are not a form of speech but of collective action. They are of the nature of a display of force rather than of that of an appeal to reason; their inarticulateness prevents them from becoming part of language and from reaching the level of discourse.

…The right to hold public meetings on a highway or in a park is unknown to English law. Far from being the object of a right, the holding of a public meeting on a street or in a park may constitute a trespass against the urban authority in whom the ownership of the street is vested even though no one is obstructed and no injury is done; it may also amount to a nuisance

Following the adoption of the Canadian Charter of Rights and Freedoms in 1982, however, freedom of expression has been protected under s. 2(b) of the Charter and freedom of peaceful assembly has been protected under s. 2(c).  Since these freedoms are constitutionally protected, governments must comply with them unless they can demonstrate that limits they have imposed are reasonable and justified in a free and democratic society.  That this applies to protest marches can be seen in cases such as Villeneuve, a 2018 case in which parts of a Montreal bylaw requiring protesters to file an itinerary in advance of any protest were struck down on both constitutional and administrative law grounds.

A helpful quote for understanding the balance between Charter-protected rights and other values comes from the reasons of Justice La Forest in the 1991 case of Committee for the Commonwealth of Canada v. Canada:

…[freedom of expression] does not encompass the right to use any and all government property for purposes of disseminating one’s views on public matters, but I have no doubt that it does include the right to use for that purpose streets and parks which are dedicated to the use of the public, subject no doubt to reasonable regulation to ensure their continued use for the purposes to which they are dedicated.

That is, while there is a right to protest in the streets, that right has limitations, including those ensuring that streets can continue to be used for their primary purpose, namely transportation.  Governments are entitled to enforce such limitations; indeed, given the multiplicity of groups and interests in society that might conceivably wish to march in the streets, failing to do so would be an abdication of their responsibility.

If a group feels that its rights have been unreasonably restricted, then it is free to challenge those restrictions in court.  Conversely, if a municipal government fails to impose any restrictions, then voters may choose to replace that government at the next election.

A guest editorial on a proposed disposition of the Oak Bay Marina lands stated that local First Nations “have never sold, surrendered or gifted these lands or waters.”  This is incorrect, at least with regard to lands (since no legal interest in waters existed).  While most of the lands constituting what is now British Columbia were never the subject of treaties, local groups in Greater Victoria surrendered any land rights they might have had pursuant to what are now known as the Douglas Treaties.  The Oak Bay Marina lands (either Shpwhung meaning “flying dust” or Spewhung meaning “fog”, depending on the speaker) were understood to be part of the territory of the Chekonein, who were signatories to the agreement made on April 29, 1850.  The prologue to the document refers to “Purchase of land from the Tribe or Family known as the Che-ko-nein extending from Point Gonzala along the Boundary of the  Chilcowitch and Kosampsom Tribes as far north as Cedar Hill and including all the ground east of that line to the Canal de Arro and Straits of De Fuca”.  Thirty men from this group are listed by name, including Chee-al-thluc, who was considered the leading chief of the Songhees peoples.  The wording states “it is understood however that the land itself, with these small exceptions becomes the Entire property of the White people for ever.”  That does not, of course, preclude Oak Bay gifting or selling the lands to First Nations now.

A study in 2022 found that about 10% of the US population agreed with conspiracy claims that the Earth is flat and NASA faked the moon landing. Given that, I suppose there will be some readers who will be persuaded by Gwyn Morgan’s latest attempt (March 28, “Net zero is dead. Why is Carney still pushing it?”) to persuade them that human-caused climate change isn’t real and that governments should not attempt to limit carbon emissions.  The Times-Colonist has published dozens of Mr. Morgan’s opinion pieces over the years, and at least once (January 29, 2021) has felt obliged to follow up with an editorial titled “Why we published Gwyn Morgan’s column”.  The stated rationale was that a variety of opinions should be presented for readers’ consideration, though the Times-Colonist recognized that there were limits to what should be printed, with Holocaust denial and praise of eugenics given as examples that would cross the line.

Why would anyone think that someone Maclean’s once called the “most powerful man in Canada’s oil patch” would provide fair commentary about the role of the fossil fuel industry in changing the climate or the risk to humanity that climate change poses? Try this instead: on your phone or computer, Google “is human-caused climate change real?” If you choose not to believe the answer, that says something about you.

The Globe and Mail has now admitted that five years ago the media, including the Globe itself “did not initially scrutinize, much less challenge” the assertion that unmarked graves had been found at the site of the Kamloops Indian Residential School, has noted that “initial headlines and stories in the media simply stated as fact that the remains of 250 children had been found”, and has pointed to its misuse of the term “mass graves”.  Five years later, no graves or human remains have been found.

Here are excerpts from past headlines from the New York Times on this topic:  “Mass Grave of Indigenous Children Reported in Canada” (May 28, 2021); “The discovery of the remains of hundreds of children at the sites of defunct schools in British Columbia…” (June 7, 2021); “…just weeks after the discovery in British Columbia of the unmarked graves of 215 Indigenous children…” (June 22, 2021; “With Discovery of Unmarked Graves…” (June 26, 2021); “After Bodies Are Found, Some Say Canada Day is Nothing to Celebrate” (June 28, 2021); “…the discovery of Indigenous graves in British Columbia” (January 1, 2022).

Does the Times intend to say anything about its own reporting on this topic?

Thank you to the Times-Colonist for its reporting on the growth of paid medical services in Greater Victoria (February 3, 2026, “People with no other options turning to private clinics”), which revealed that people are paying “between $1,200 and $10,800 a year for access to a regular doctor through subscription fees” and that up to 38% of those with a family doctor were paying extra fees.

I forwarded a copy of the article to the federal and provincial health ministers and to local politicians, pointing out that Section 3 of the Canada Health Act states that a primary objective of Canadian health care policy is “to facilitate reasonable access to health services without financial or other barriers” and that the preamble to that statute states that “continued access to quality health care without financial or other barriers will be critical to maintaining and improving the health and well-being of Canadians”.   Having to pay thousands of dollars in subscription fees in order to be able to access medical services is certainly a “financial barrier”, particularly at a time when so many people have no family physician.

The federal minister replied promptly to say that the Government of Canada does not support a two-tiered health care system where patients may choose, or be required, to pay for quicker access to medically necessary services, but that health care is a provincial responsibility and that Health Canada does not have investigatory powers. Over to the province then, which is still governed by the party of Tommy Douglas, the “father of Medicare”; will it act to fix this or not?

An article in your March 2026 edition regarding the Cowichan Aboriginal title decision concludes that lawyers “have a responsibility to steer clear of fearmongering, misinformation and perpetuating a distrust in the judicial system”.  If that is true, then it must also be the case that lawyers have a duty to raise legitimate concerns, to demand accurate information, and to point out flaws in the operation of the judicial system.  Unfortunately, some of the lawyers best positioned to do so with regard to Aboriginal title matters, namely those employed by the federal and provincial Attorneys General, are “gagged” with respect to writing or speaking publicly on the topic of Aboriginal title, or at least were when I worked for each of those institutions.

Given that, and since individual lawyers should make up their own minds about the legitimacy of the concerns raised regarding the Cowichan decision and other recent Aboriginal title developments, perhaps it will be useful to at least articulate some of the relevant questions they might wish to consider when doing so.

Is there any reason why Cowichan would not be a precedent affecting other privately-held lands in British Columbia?  Although the Cowichan claim only directly affects a few hundred land titles in Richmond, virtually all of the province is subject to litigation claims of Aboriginal title, with the exception being treaty lands (with even some of those being subject to Aboriginal title claims) and judicially-established Aboriginal title lands.  To the extent those claims are valid, would Cowichan not establish a relevant precedent with regard to other fee simple lands?

Could the Crown afford to resolve all Aboriginal title claims to fee simple lands?  At paragraph 3588, the Court says that it is for the Crown to resolve the “competing interests” of fee simple and Aboriginal title holders.  The total value of real estate (i.e. not including unallocated Crown land) in British Columbia was this year assessed at $2.75 trillion.

Can Aboriginal title and fee simple really coexist as the Court stated, given that they both include a right to exclusive use and occupation?  The article quoted paragraph 2189 of the Cowichan decision, “I also find that, as Aboriginal title and Crown title coexist, it follows that Aboriginal title and fee simple can coexist, as the latter is a derivative of Crown title.”  Was the Court correct to analogize between Crown title – that allodial or ultimate interest that underlies fee simple interests rather than competing with them – and Aboriginal title, which – like fee simple title – includes the right to exclusive use and control of land, i.e. the right to exclude all others?

Have the holders of fee simple titles been afforded natural justice in a process that affects their property rights?  In November of 2017, Power J. dismissed Canada’s application seeking to require that notice be given to the fee simple owners that would be affected by the Cowichan decision.  Paragraph 11 of that decision reads:  “Further, as argued by both Canada and British Columbia, an aboriginal title declaration is in the nature of a judgment in rem and that the conventional view is that a judgment in rem will be conclusive against non-parties in the absence of fraud, collusion, or proof that an interested non-party was denied the opportunity to be heard.”  The then-Attorney General of Canada chose not to appeal from that decision.  For reasons of policy or ideology, neither the federal nor provincial Attorney General will allow their lawyers to plead or argue all available defences against Aboriginal title claims.  No amicus curiae was appointed to represent the interests of the fee simple owners.

Does the Cowichan decision really contain “its own checks and balances to protect individual property rights”?  Paragraph 3588 says, “…the Cowichan have not challenged the validity of the private fee simple interests and those interests are valid until such a time as a court may determine otherwise or until the conflicting interests are otherwise resolved through negotiation. [emphasis added]”  Once a court has determined that Aboriginal title with its concomitant right to exclude all others exists – not that it existed in the past or that it might have come into existence if not for the grant of fee simple title – then would it not be too late to protect private property rights if an order for ejectment is sought at a future date?

While the Cowichan decision raises many other important questions, those stated above may perhaps illuminate why the concerns raised in the news media and elsewhere should not be dismissed out of hand.

While 2025 has been one of the most depressing of the 40+ years since the general public became aware of the threat of climate change, this is the season when we count our blessings and try to bring a positive outlook to the new year. Given that, it is worth remembering that — particularly from our vantage point on Vancouver Island —some good things have happened recently too.

First, a recap of why 2025 seemed so bad. Donald Trump became President and promptly started reversing what little progress the world’s biggest economy had made on fighting climate change. The COP 30 final agreement failed to even mention fossil fuels. CO2 emissions reached a new high and 2025 is expected to have been among the hottest years on record. By some measures, Canadian wildfires were second only to those of 2023 in severity, and the Palisades fire in California showed that even wealthy urbanites are not immune from the effects of climate change. Canada’s first LNG exporting facility began operating in British Columbia with more such plants coming.  A Memorandum of Understanding was signed between Prime Minister Mark Carney and Premier Danielle Smith to fast-track a bitumen pipeline to the B.C. coast.  In the federal election, 96% of voters in Victoria chose parties that favoured more fossil fuel extraction rather than less (full disclosure: I ran for the Green Party of Canada on a platform emphasizing fighting climate change and got just 3% of the vote — ouch!).

On the political front, though, there was reason for hope. Victoria’s new MP, Will Greaves, recently wrote this to constituents: “Victoria’s position is clear: we do not support new bitumen pipelines.”  It takes courage for an MP to take a position at odds with their party’s leadership, so kudos to Will Greaves for taking that stance. Even more remarkably, Stephen Guilbeault resigned from Cabinet because of his opposition to the Alberta Memorandum of Understanding. Over the decades, I’ve personally known quite a few individuals who took principled positions against climate change right up until the point when they were appointed to the federal or British Columbia cabinets, at which point their principles evaporated, so Stephen Guilbeault’s resignation was a welcome surprise.

Looking around on Vancouver Island roads, it’s obvious that more and more drivers are realizing that fossil fuel-powered vehicles are, frankly, kind of crappy. They’re noisy, have poor acceleration, require expensive maintenance, and necessitate expensive trips to the gas station to buy smelly, highly flammable fuel. It’s no wonder that about a third of new sales in the Capital Region are electric vehicles. And while price is still an obstacle for many buyers, Mark Carney is eventually bound to look at soaring sales of Chinese electric vehicles in the UK and decide to drop our 100% tariffs on them to a level closer to the 10% British tariffs. After all, Canada has no electric vehicle industry of our own to protect, and is certainly no longer under any obligation to protect US automakers!

And speaking of China, in 2025 it saw its CO2 emissions actually plateau or fall, driven by record renewable energy growth (solar/wind) and massive EV adoption, even as its economy grew. Perhaps this will mean that Canadians might finally stop pointing to Chinese emissions as somehow justifying our own ever-increasing emissions and failure to meet our emission-reduction targets and obligations. Also, it’s a reminder that when clean energy technology is cheaper than the dirty alternatives, it’s foolish to expect that inertia, nostalgia, and massive government subsidies will sustain the fossil fuel industry indefinitely.

So, while our federal and provincial leaders in Ottawa and Victoria may continue to promote an economic future dependent upon Canada’s continued export of raw natural resources and may choose to ignore the horrific consequences for their children and grandchildren of the resulting climate destruction, at the end of 2025 market forces are slowly pushing us toward a more climate-friendly future.

From that perspective, maybe 2026 really will turn out to be a happy new year!

It is commendable that Hamar Foster has recently written two pieces for the Times-Colonist (August 30,  October 14) attempting to shed light on the recent Cowichan decision that — if upheld on appeal — could negate much of the land title system by which British Columbians hold private property.  Readers may, however, have been left with the impression that the decision of the Supreme Court of British Columbia in Cowichan was inevitable and that that result followed from the 1888 decision in the St. Catherine’s Milling and Lumber Company.

In that 1888 case, the Government of Canada had attempted to argue that the Ojibbeway “had, and were always recognized as having, a complete proprietary interest”, but Canada lost the case and Ontario won.  Although the court did not did not express an opinion about the “precise quality of the Indian right”, it disagreed with the argument that the entire property in unceded lands remained with First Nations, and observed that “the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign.”  As Emeritus Professor Foster correctly suggests, the post-Colonial government of the Province of British Columbia was foolishly intransigent with regard to settling the land claims of First Nations, but the St. Catherine’s Milling decision could have supported the belief that there was no legal obligation to do so.

The Provincial Government may also have believed that any Aboriginal title that could have existed in parts of British Columbia had already been extinguished by the Colonial government.  On February 14, 1859, Governor Douglas issued a Proclamation that “All the lands in British Columbia, and all the Mines and Mineral therein, belong to the Crown in fee.”  The Crown had already had what the court in St. Catherine’s Milling called “a substantial and paramount estate” to all the land in British Columbia dating back to when Crown sovereignty was first asserted, so proclaiming ownership of all of the lands “in fee” may have been thought to have resulted in the Crown having all of the rights to land in British Columbia, thereby effectively precluding the continued existence of any land rights held by First Nations.

That was what Chief Justice McEachern concluded when he ruled on the question in 1991 in Delgamuukw:

“To put it in a nutshell, I find that legislation passed in the colony and by the Imperial Parliament that all the land in the colony belonged to the Crown in fee, apart altogether from many other enactments, extinguished any possible right of ownership on the part of the Indians.”

The British Columbia Court of Appeal disagreed with that finding and overturned the decision, and on further appeal to the Supreme Court of Canada, that Court did not rule on the issue.  The issue was not argued in subsequent cases such as Tsilhqot’in.  The question of whether or not Aboriginal title could exist in British Columbia after 1859 therefore remains an open one. 

Since both the Government of Canada and the Government of British Columbia have forbidden their lawyers from arguing that Aboriginal title has been extinguished, it seems unlikely that we will learn the answer, unless the courts should appoint an amicus curiae to argue the point.  And since Aboriginal title is the right to exclusive use and occupation of land and since the trial decision in Cowichan, if upheld on appeal, would mean that Aboriginal title can be found to exist to what are now privately-held lands, the matter is certainly one of importance to all British Columbians.

As to whether or not the Cowichan trial decision will be upheld on appeal, who knows?  In my PhD thesis, I observed that the interests of the Cowichan to their site on the Fraser River were analogous to what the common law calls an “interest coupled with a license” and were therefore not sufficient to result in a finding of Aboriginal title, which may give some indication of how very complicated the legal issues are in this area!

When does Aboriginal title to any particular area of land come into existence?  Is it at the date of the Crown’s assertion of sovereignty over that area or is it at some later date when the state — either by way of a Court order or some emanation of the Crown or the Legislature — declares its existence?

Although the Supreme Court of Canada has not to date answered that question, both the British Columbia Court of Appeal and the current Government of British Columbia[1] appear to believe that the former is the correct answer, that Aboriginal title has existed in some places within the geographical boundaries of what is now British Columbia ever since the date or dates[2] at which the British Crown first asserted that it, rather than some competing sovereign entity (namely Spain, Russia, or the United States of America), had sovereign authority over those places.

It will be argued here that that belief is incorrect.  While the date of the assertion of Crown sovereignty is the correct date to be used in judicial determinations of whether Indigenous groups meet the test for establishing Aboriginal title,[3] it is not the date at which Aboriginal title actually comes into existence.

The Assumption that Aboriginal Title Already Exists

In Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc.[4], the British Columbia Court of Appeal considered an appeal from an order of a chambers judge granting Alcan’s application to strike out the notice of civil claim.  The chambers judge’s ruling was based upon a finding that claims in nuisance and related causes of action based upon Aboriginal title and other Aboriginal rights could only proceed if those rights had been proven rather than merely asserted.  The appellate court found that this approach was wrong, stating:

In my view, that would be justifiable only if Aboriginal title and other Aboriginal rights do not exist until they are so declared or recognized.  However, the law is clear that they do exist prior to declaration or recognition.  All that a court declaration or Crown acceptance does is to identify the exact nature and extent of the title or other rights.[5]

If — as is respectfully argued below —the British Columbia Court of Appeal was in error on this point, then the source of that error is arguably twofold:  (i) presuming that all “rights” are essentially similar and that one unique Aboriginal right, namely Aboriginal title, is much the same as other Aboriginal rights, such as hunting and fishing rights; (ii) the continued use of the label “sui generis” by the Supreme Court of Canada with regard to Aboriginal title in order to shield that concept from rigorous analysis.

Different Types of Rights

One way of conceptualizing “rights” divides them into two types.  One type consists of what might be called freedoms or liberties, while the other type consists of entitlements or benefits.  The former type would, for example, guarantee the freedom to express oneself or to worship without government interference, while the latter type might oblige governments to provide such necessaries of life as food, shelter or water.  Into which of these two types of right would Aboriginal title and other Aboriginal rights fall?

Indigenous peoples in every part of the world have been harvesting fish, wildlife, and plants for millennia, and those harvesting practices will often be central to their cultures.  The Indigenous peoples of Canada will therefore often have an Aboriginal right to not have such harvesting practices unreasonably interfered with by government regulation or other government actions.[6]  Just as the practice of religion or of free expression is recognized as requiring constitutional protection from unreasonable government interference, so can the practice of resource harvesting by Indigenous peoples be recognized as requiring protection from unreasonable government interference.  Of these examples, each one — expression or worship or resource harvesting — is a practice in which people are already engaged and have been engaged for thousands of years, and all that is required by virtue of a “right” to the practice being recognized is non-interference with that existing practice.  This type of right already exists and is what is intended when the term “Aboriginal right” is used in a general way, such as to refer to hunting or fishing rights.

Is Aboriginal title this type of right?  No, it is not.  Aboriginal title, just like other forms of title, is the other type of right, a benefit or entitlement.

Considering “Title” from First Principles

What does it mean to have “title” to land, whether Aboriginal title, fee simple title, or any other form of real property right?  Surely it is the state standing behind the holder of that right and saying, “This state recognizes your right to this particular piece of land and will use its sovereign power to guarantee your right against any who might seek to take this piece of land from you or to infringe your right to its benefits”?  That is, title is an entitlement recognized by the state or a benefit conferred by it.  It is not the freedom to continue a practice unhindered by state interference; rather, a practice in which some person or group of persons has engaged may form the basis for recognition of entitlement to receive a benefit, that benefit being Aboriginal title.

As defined by the Supreme Court of Canada, the practices that form the basis for Aboriginal title to a piece of land are those that demonstrate exclusive physical possession of that land.[7]  While this would most obviously include constructing buildings and inhabiting them,[8] other practices may also weigh in the balance when a legal determination of the existence or non-existence of Aboriginal title is made.  Those practices may have been engaged in for thousands of years, but the date at which a sovereign state — in this jurisdiction, the Crown — conferred upon those who engaged in such practices in a specified area the Crown’s recognition of their title and its promise to protect that title was obviously much more recent.

Again, the question with regard to any specific piece of land to which any specific Indigenous group asserts Aboriginal title is:  when, if ever, did the Crown in effect say that it recognized that particular group’s title to that particular piece of land and that it would protect that group’s interest as against the world?  At what date did the Crown confer that benefit?  Could it really have been in 1846 or the earlier date or dates at which sovereignty was asserted, a date when European knowledge even of the geographic features of this area, let alone its inhabitants and their territories, was very far from complete?  It would be disturbing to think so, since this would mean that the Crown was making a commitment at a time when it knew it lacked the knowledge and ability to fulfill that commitment.  Indeed, with only two exceptions, the Crown still does not know those areas where Aboriginal title exists.

A more defensible version of what the Crown may be conceived as having said on the date it asserted sovereignty is as follows:  “Upon this date at which the sovereignty of the Crown is asserted over this geographic area, a system of land tenures is simultaneously created, which will from now on allow for the creation of “title” to land by which the rights of title holders will be protected, one form of which — Aboriginal title — will be available to any group that demonstrates that at this date it exclusively occupied specific lands and that it still maintains its connection to the lands when it asks for recognition of its Aboriginal title.  As soon as any group meets this test of demonstrating its exclusive occupation of specific lands at this date of the assertion of sovereignty and its continuing connection to those lands, then going forward that group will hold Aboriginal title and be entitled to the Crown’s protection of that title.”  By this conception, what Indigenous groups acquired at the date of the assertion of sovereignty was not Aboriginal title to specific lands but an entitlement to obtain Aboriginal title and to thereby enjoy its benefits.

While both of these alternative formulations are, of course, legal fictions, the latter has the advantage of at least being consistent not just with the gradual extension of Crown authority following the assertion of Crown sovereignty in what is now British Columbia, but also with how title is conceptualized under the common law.

An Analogy

A useful thought experiment for any Canadian lawyer regarding this topic might begin by them imagining themselves serving a term as a solicitor in rural England, and having a client come in with a unique problem.  The client lives in a house on a remote piece of land which has been handed down through countless generations of their ancestors stretching back to at least the Norman invasion, but to which it was recently realized that no deed or other instrument attesting to their property interest can be found to exist.  The worried client is aware that there is something called “title” to property and thinks that they want to get it in order to protect their interests.  Would prudent advice to the client be:  (a) “Don’t worry, you already have title and your family has had that title for a millennium”; or (b) “You were right to worry, and I will endeavour to obtain for you the title to the land based upon your family’s occupation of it”?  It seems likely that most lawyers would opt for “b”.

This is because of the common law’s recognition that ownership or an entitlement to ownership and “title” are not necessarily one and the same, a distinction which is reflected by statute in s. 23(2) of the British Columbia Land Title Act:

(2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title….[9]

This statutory provision recognizes that the title to the land is distinct from the entitlement to the estate in the land, with the former constituting recognition and proof of the latter.  This distinction, as well as the ability to acquire title, is one that can also be seen (though no longer in British Columbia[10]) in the ability to acquire title to land by adverse possession.

Why It Matters

This discussion may seem arcane, and for some lawyers may prompt unwelcome memories of first-year Property classes and the bewildering concepts from English common law to which those classes exposed them.  Because of British Columbia’s system of land title registration, even lawyers whose practises focus solely on real estate may seldom have to think very deeply about the underpinnings of our system of land tenure.  The answer to the question of when Aboriginal title to any particular piece of land comes into existence is, however, of crucial importance to everyone in British Columbia.

Indigenous groups have commenced litigation asserting that they have Aboriginal title — that is, the legal right to the exclusive occupation of property and the right to exclude others[11] — to almost all of British Columbia.  These claims are not just to unallocated Crown lands, but also to lands currently held by private owners.  The lands not covered by these claims are principally those where there are treaties, such as Tsawwassen, the northeast, and some parts of Vancouver Island.  Some of the cases seeking declarations of Aboriginal title to private lands are currently dormant, while others are being actively pursued.

If Aboriginal title only comes into existence at the date when it is declared to exist by a Court or is otherwise validated, then even if an Indigenous group can show that it had exclusive occupation of land that is now privately owned, it seems unlikely that it could establish Aboriginal title.  The fact of someone else having acquired title and perhaps having built a home, farm, or other building on the land would be an obstacle to a court finding that an Indigenous group should now be able to acquire the right to exclude such owners from the land.[12]

If, on the other hand, an Indigenous group acquired Aboriginal title at the date of the assertion of Crown sovereignty, then why would it not still have that title and the associated right to exclude others from the land?  Since the Province has always lacked the ability to unilaterally extinguish Aboriginal rights, then the mere fact of it having purported to grant titles to private landowners should arguably not have affected the ongoing validity of the Aboriginal title to those granted lands.  Admittedly, it is possible that all Aboriginal title in British Columbia may have been extinguished by the Colonial Government of British Columbia on February 14, 1859,[13] and it is also possible that land owners in the Railway Belt whose title originates with grants by the Government of Canada —which did have the ability to unilaterally extinguish Aboriginal title until 1982 — may possess valid titles.  Leaving aside those possibilities, however, then why should it not be the case that if all Aboriginal title to land came into existence at the date of the assertion of Crown sovereignty, that it still exists, including to lands that are now considered to be privately owned?

This potential outcome — the invalidation of indefeasible titles under the Land Title Act in favour of Aboriginal title — is not, of course, the reason why Aboriginal title should be judicially found not to come into existence until an organ of the state says that it exists:  Fīat iūstitia ruat cælum.  Such an outcome would, however, involve significant social, political, and economic cost.[14]

If nothing else, the fact that the question discussed in this article remains an open one points to a predictability problem in the law regarding Aboriginal title.  By repeatedly invoking the description of Aboriginal title as sui generis, the Supreme Court of Canada has avoided and discouraged the sort of principled analysis that would allow for confidence about the answers to a number of such questions.  If the Court is not more forthcoming in future, it may seem that its decisions in this area are results-driven rather than based in principle, and that what the Court will decide on this and other questions regarding Aboriginal title can only be answered by knowing what outcome the Court wants.

[1] Lisa Cordasco, “Province denies forcing First Nation to prove Aboriginal title after promise to change policy”, Vancouver Sun, June 24, 2021, <https://vancouversun.com/news/local-news/province-plans-to-force-first-nation-to-prove-aboriginal-title-despite -promise-to-change-policy>.

[2] The question of what the date of the assertion of sovereignty may be is one that merits separate consideration in a future article.  Briefly, it is often presumed that 1846 was the date of the assertion of sovereignty for all of what is now British Columbia (The Nuchatlaht v British Columbia, 2023 BCSC 804, at para. 106), but since the Oregon Treaty of 1846 did not apply north of 54’40”, the 1825 resolution of the border between British America and Russian America makes 1825 the latest credible date for the assertion of sovereignty in that area.  In addition, it still remains open to appellate courts to confirm that sovereignty was asserted more generally as early as the 1790s, as was stated by the Supreme Court of Canada in Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 SCR 388 at pp. 402-403.

[3] “…whereas the time for the identification of aboriginal rights is the time of first contact, the time for the identification of aboriginal title is the time at which the Crown asserted sovereignty over the land.”  Delgamuukw v. British Columbia, [1997] 3 SCR 1010 at para. 142 (“Delgamuukw (SCC)”.

[4] Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154.

[5] Saik’uz at para. 61.

[6] The test for Aboriginal rights generally is set out in R. v. Van der Peet, [1996] 2 S.C.R. 507.

[7] “’Occupation’ means ‘physical occupation’”.  R. v. Marshall; R. v. Bernard, 2005 SCC 43 at para. 56.

[8] Delgamuukw (SCC) at para. 149.

[9] Land Title Act, [RSBC 1996] c. 250, s. 23(2).

[10] “Acquisition of title to land in British Columbia by adverse possession was abolished on July 1, 1975 with the coming into force of the Limitations Act, S.B.C. 1975, c. 37.  Title to land acquired by adverse possession before July 1, 1975, however, was preserved and could continue to be claimed, subject to the ability of the holder of registered title to bring a proceeding enforcing his or her rights within the applicable limitation period: Limitation Act, R.S.B.C. 1996, c. 266, s. 14(5).”  Nelson (City) v. Mowatt, 2017 SCC 8, at para. 9.

[11] Delgamuukw (SCC) at paras. 155, 158.

[12] Note that the test for Aboriginal title articulated in Delgamuukw only requires “continuity” between present and pre-sovereignty occupation if present occupation is relied on as proof of occupation pre-sovereignty:  Delgamuukw (SCC) at para. 152.  In order to satisfy the “central significance” element of the test for Aboriginal rights generally, however, Aboriginal title claimants will generally wish to rely upon their continuing occupation of the lands over which title is asserted:  Delgamuukw (SCC) at para. 199.  Otherwise, the “central significance” of the land would have to be proven by other means.

[13] In Delgamuukw, the trial judge held that Aboriginal title had been so extinguished by Colonial proclamation, the British Columbia Court of Appeal held that it had not, and the Supreme Court of Canada did not consider the question.  The question has not been argued in subsequent cases, neither the federal nor provincial Attorneys General will allow their counsel to raise it, and the courts have to date chosen not to appoint an amicus curiae to argue it.  Note the recognition by Affleck J. in Giesbrecht that “The submission of the GVRD that as an “innocent third party purchaser for value” it is entitled to plead extinguishment may have substance”:  Giesbrecht v British Columbia, 2018 BCSC 822 at para. 79.

[14] As of January 2, 2025, the total assessed value of real estate in British Columbia was $2.83 trillion <https://info.bcassessment.ca/property-information-trends/province-wide&gt;.  The vast majority of this real estate is the subject of Aboriginal title claims.

Oh, wow, we thought you were kidding. Awkward! You’re great, like really great, the greatest country ever! And we love you, and we hope you know that. But we’re just too different to make the kind of commitment you’re looking for, and if you look into your heart, we think you know that too.

Remember back in 1776 when you stormed out of the parental home and set up your own place, how we could have joined you then, but we deliberately chose not to? And how about 100,000 Loyalists moved out of your place, and most of them moved in with us? Including, you know, thousands of black people who were unhappy that when you said, “all men are created equal”, you didn’t mean them?

You were convinced that we belonged together, though, and you wouldn’t take “no” for an answer, which is how your Continental Army ended up invading us and losing the Battle of Quebec in 1775, and how – after you invaded us several more times between 1812 and 1814 – we burned Washington in 1814 to show you that “no” mean really does mean “no”?  And then you still looked the other way when your proxies in the Hunters’ Lodge and the Fenians (19^th-century Proud Boys?) kept trying to invade us on your behalf?

Still, we patched things up, to the point that we could even joke about the idea of the two of us ever going to war again.  ‘Canadian Bacon’, what a great movie!

But just because we’re cool now about our past disagreements doesn’t mean that we want to tie the knot. For one thing, we’ve heard how you’re always making fun of us for being polite and saying “sorry”, but listen: countries, just like people, screw up. If they don’t acknowledge that, then it’s difficult to move forward. So yes, that’s why we’ve apologized to former students at Indian Residential Schools, and to the black soldiers of the No. 2 Construction Battalion, and to the Dakota and Lakota and Anishinaabeg, and to the Inuit, and to Japanese-Canadian internees from World War II, and to Ukrainian internees from the Great War, and to the payers of the Chinese Head Tax, and others besides. And if you have a problem with that, did you ever think that maybe it’s because you sometimes confuse politeness and goodwill with weakness?

We get that you worry about being seen as weak. Nobody can be strong all the time, though, which is why universal health care is so important to us, something that you persist in calling “socialist” or even “communist”, which frankly makes you sound like you’re stuck sometime in the past.  Like, are those even meaningful ideologies any more?

And speaking about how you worry about looking weak, is that what all the guns are about? Because, frankly, they creep us out. So. Many. Guns. If we moved in with you, would you even have room for all our stuff, given that all of your cupboards and closets and drawers are full of guns? And if you think that we’re being unreasonable about the guns, try asking your other friends —Japan, the UK, France, anybody — “Hey, you don’t think that it’s weird that I’ve got all these guns, do you, and that I’m okay with people getting shot all the time?” See what they say. There’s a million other differences between us, but here’s one that makes this a really bad time for you to be raising this idea of getting hitched. Do you remember back in September 1939 when we declared war on fascism and you didn’t, because you couldn’t make up your mind about whether fascism was a good thing or a bad thing? How it was more than two years later and how it took someone literally — literally —dropping bombs on your head in December of 1941 before you finally got it and agreed that, yes, fascism is a very bad thing? Eighty years isn’t such a long time in country-years, but you seem to have forgotten arriving at that conclusion and the expensive education that got you to that point, and if you think we’re exaggerating, try doing an Internet search for “early warning signs of fascism” and then taking a look in the mirror.

When my father was a boy, the number of humans reached 2 billion, having taken well over a century to double from 1 billion.  By the time that I graduated from high school, however, the human population had doubled again to 4 billion, and at about the time that I became a senior citizen, it doubled again to 8 billion.

Did we set out to achieve this growth?  Not that I recall.  My young friends and I didn’t sit around bemoaning how empty the world seemed with only 4 billion people in it, didn’t fret about the dearth of condominium towers, didn’t plot to double the world’s CO2 emissions by doubling its population.  In fact, some of us—me, for one—decided not to have children at all because we doubted the Earth could sustain even the existing human population over the long term.

This is why I find it so puzzling to read frequent claims of a “demographic crisis” as the extraordinary population growth rate of the past two centuries finally slows and begins to slowly turn around (thank you reliable birth control and women’s education!).  What exactly would make this a “crisis”, which is generally defined as an unexpected event creating uncertainty and threatening important goals?  That human numbers would not continue doubling indefinitely – 16 billion, 32 billion, and so on – was not unexpected and was instead ardently hoped for.  Rather than threatening our societal goals, a reduction in the human population is likely to help us achieve those goals, such as rebuilding the populations of non-human species and avoiding further degradation of those planetary systems necessary for the maintenance of life.

Opinions expressed in this publication and others, though, suggest that we are about to be subject to something akin to Thanos’ snap (or presumably worse, since that would only take us back to the population level we had when I was in high school).  Although it should really not be necessary to point this out, please note:  we are absolutely, positively not about to run out of human beings.  Despite the urgings of eccentric billionaires, populist politicians, and sombre columnists, no one should think that they have a duty to sacrifice their life goals in order to bring more humans into this world.  Yes, there may be uncertainty about exactly how societies will adapt to demographic change, though there will presumably be less spending on ushering people through the unproductive first two decades of their lives and more ushering them through the much shorter period that some of them will be unproductive at the ends of their lives.  But a “crisis”?  Pfft!

Of course, there are some people who are right to worry about an end to runaway population growth.  Property developers and those in industries that cater to them, they may understandably wish that we would continue to fuel our other “crises”—the housing crisis, the doctor crisis, the infrastructure crisis, etc.—by adding more people to our populations without having planned how we are going to accommodate their needs.  Investment bankers, manufacturers who feel obliged to show growth rather than steady sales, these sorts of people should perhaps be frightened by an end to population growth, but the rest of us?  Not so much.

Politicians who have treated the public coffers as something akin to a Ponzi scheme, always trusting that a bigger pool of future taxpayers will fund the shortfalls incurred in currying favour with present voters, sure, they have something to worry about.  All Ponzi schemes eventually collapse, since they depend on unlimited growth that simply cannot be sustained in real life.  That being the case, at some point we have to begin managing the changes that will result to our cultures and societies from the fact that we cannot have infinite population growth on a finite planet.

Change, of course, is often uncomfortable.  Those people of the past who made their livings from manufacturing the proverbial buggywhips or from hunting whales or bison or fur seals, they must all have wished that their industries could continue to grow indefinitely, but they couldn’t and they didn’t.  Today, though, we see no unemployed harpooneers sitting on the sidewalks, no houses that are dark for want of whale oil for their lamps.  We figured out better ways of doing things and moved on.

Later this year, I will be visiting Japan again.  The real Japan, that is, not the one employed as a straw man by those stoking fears about an end to population growth, where elderly people are trapped in their beds in retirement homes because of insufficient numbers of young people to attend to their needs.  Many of the septuagenarians and octogenarians who I see in Japan will be training in the same karate classes as me, while others will be the shopkeepers and cooks who will sell me things and keep me fed while I’m there.  Of course, I’ll see many, many young people as well, some of them on the baseball diamond that I pass on my route to JKA Headquarters.  I suppose the ratio of older to younger people may be a bit different than on my first visit to Japan a few decades ago, but I won’t notice it.  Instead, I will just feel lucky to be there.

And to those wringing their hands about why young people are choosing not to have babies, feel free to ask me.  Admittedly, I am far from young now, but I was when my wife and I decided not to have children and our reasons were probably not that different from those of people who are making the same choice now.  Just like us, they will probably never feel even a moment’s regret about having made that choice.

As a lawyer who has spent much of the past two decades litigating Aboriginal title cases, as well as studying and writing about Aboriginal property rights more generally,[i] I have sometimes felt like one of those apocryphal medieval theologians who are popularly believed to have debated the number of angels that could dance on the head of a pin.  Like them, I have both made legal arguments and given legal advice on the basis of extrapolation from that which is known, but with the recognition that so much is unknown and currently unknowable that I could be quite wrong.

The difficulty is that there have only been a small number of Aboriginal title cases, of which exactly one  – Tsilhqot’in Nation[ii] – has resulted in a declaration of the actual existence of Aboriginal title held by a specific Indigenous group in a specific place.  Imagine if there had only ever been one case that had resulted in a finding of tort liability, or only one case in which a court had found the existence of an enforceable contract.  No matter how much of an explanation a top appellate court had provided in obiter dicta about those subjects – as the Supreme Court of Canada has done with regard to Aboriginal title – no one could reasonably feel confident that they fully understood them.

There are several cases being actively litigated in British Columbia at this time, so it may be that we will soon know more about Aboriginal title than we do now.  Greater certainty would be welcome, given for how long we have been speculating about Aboriginal title’s effects.[iii]  Aboriginal title has been asserted to exist throughout the entirety of British Columbia, with the exception of the treaty areas:  Treaty 8 lands in northeastern British Columbia; the handful of Douglas Treaties on Vancouver Island; and the modern treaties, including the Nisga’a Final Agreement, the Tsawwassen Treaty, and the Maa-nulth Final Agreement.  With those exceptions, plus the Tsilhqot’in Aboriginal title lands and some parcels that were the subject of court cases that have settled, every square inch of both Crown land and privately-held lands is the subject of a claim to Aboriginal title in the Supreme Court of British Columbia (although many of these are so-called “protective writs” that were filed years ago and are not being actively pursued at this time).

Aboriginal title encompasses the right to exclusive use and occupation of the land, the right to determine the uses to which the land is put, and the right to enjoy the economic fruits of the land.[iv] It might therefore come as a shock to most people that currently enjoy exactly such rights by virtue of their own registered fee simple titles to learn that others claim to be the legitimate holders of those rights to the very same properties by virtue of Aboriginal title.  And since the value of the lands at stake are enormous (private lands in British Columbia alone are assessed at 2.44 trillion dollars[v]), there is a lot riding on the outcome, so much so that it might amaze those who do not practise in this area that there are fundamental questions about Aboriginal title to which we do not have definitive answers.

The following are just some of those questions, and are all ones that could be said to arise in attempting to establish the existence of Aboriginal title.  That is, they do not include questions that become relevant after Aboriginal title is established, such as with regard to the circumstances in which Aboriginal title can be infringed.

Who Is the Proper Defendant in an Aboriginal Title Case?

In the case of fee simple lands that are the subject of Aboriginal title litigation, one might think that the private landowners holding title to the lands that are the subject of the litigation would have to be named as defendants.  In cases such as Cowichan Tribes[vi] and Council of the Haida Nation,[vii] however, the Supreme Court of British Columbia ruled that such individuals do not even require notice of the litigation.

Perhaps the Crown in right of Canada, then, given the federal government’s exclusive constitutional responsibility under s. 91(24) of the Constitution Act, 1867 for “Indians and Lands reserved for the Indians”[viii]?  On the one hand, yes, in Tsilhqot’in Nation, the Supreme Court of British Columbia ruled that Canada was a “proper and necessary party to the resolution of many complex issues raised by these proceedings, all of which are of broad public importance,”[ix] and dismissed an application that it cease to be a defendant, despite there being no relief claimed against it.  On the other hand, a motion to add Canada as a defendant was dismissed in Giesbrecht,[x] and that decision was upheld by the Court of Appeal.[xi]

So far, at least, it appears that the provincial Crown is the only party that is invariably assumed to be a proper defendant.

What is the Date of the Assertion of Sovereignty?

In Delgamuukw, the Supreme Court of Canada ruled that “aboriginals must establish occupation of the land from the date of the assertion of sovereignty in order to sustain a claim for aboriginal title.” [xii]  So far, however, that court has not ruled on what that date might actually be, so no final determination has been made.  At trial in Delgamuukw, McEachern C.J. had noted that 1846, the date of the Oregon Treaty, had been judicially accepted by the Supreme Court of Canada as “establishing, conclusively” British sovereignty over what is now British Columbia.   So is the date at which sovereignty was asserted the same as that at which it was conclusively established?  Vickers J. must have thought so, since in Tsilhqot’in he used 1846 as the date of the assertion of sovereignty, saying that “the formal and explicit assertion of sovereignty by Captain George Vancouver” in 1792 amounted to “just words blowing in the wind”.[xiii]  This was despite the Supreme Court of Canada having earlier questioned whether there could be any doubt that the acts of Captains Meares and Vancouver in the late 1700s amounted to a claim of proprietorship.[xiv]

The Court of Appeal in Tsilhqot’in noted that 1846 had previously been taken to be a “significant” date as representing “a recognition of Crown sovereignty as a matter of international law”, which sidestepped the question of whether it was also the date of the assertion of sovereignty.  While that Court thought it “curious” that the Treaty of Oregon “can be seen as the defining moment for a claim of Aboriginal title”, it noted that the parties did not challenge the determination to that effect.[xv] The Supreme Court of Canada expressed no opinion on the question in Tsilhqot’in, and has not done so since.  Given that, then despite some subsequent decisions[xvi] having relied upon Tsilhqot’in as authority for using 1846, it remains possible that that court might rule that some date other than 1846 is the correct date, or that a trial judge may find that sovereignty was asserted over different parts of the Province at different times.

Does Aboriginal Title Already Exist, or Does Recognition Create It?

Most rights already exist.  So, for example, people were already expressing themselves before s. 2(b) of the Canadian Charter of Rights and Freedoms gave constitutional protection to their right to do so, and Indigenous peoples were hunting and fishing before s. 35 of the Constitution Act, 1982 gave constitutional protection to their right to do so.   In both cases, people already had the right to do certain things, and were doing them, and then their rights got entrenched in the written constitution.

Aboriginal title is a specific sort of Aboriginal right, so does a particular Indigenous group’s Aboriginal title to a particular piece of land already exist, just like other rights already exist?  The Court of Appeal clearly expressed the view that it does in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc.[xvii]  Aboriginal title is different from other Aboriginal rights in some respects, however, and this could be one of those respects.  With most rights – both Aboriginal rights and civil rights more generally – what is protected is the right to do something, something which is already being done, which in the case of land would presumably be using or occupying or benefitting from the land in some way.  Land title, though – whether that is Aboriginal title or fee simple title – is more than that, and could be viewed as the state endorsing the existence of the real property right and guaranteeing it against the world.  By that view, it is not clear when the state would have done this with regard to Aboriginal title, up until the point where a judge makes a declaration or the Crown issues some instrument of binding recognition.  By that line of reasoning, although an Indigenous group might satisfy the test for Aboriginal title and might succeed in obtaining a judicial declaration of its Aboriginal title, the Aboriginal title would not actually exist until the pronouncement by the judge brought it into existence, thereby effecting a right in rem.

Was Aboriginal Title Extinguished by the Colonial Government?

If Aboriginal title was actually created by the assertion of Crown sovereignty, was it subsequently extinguished?  In Delgamuukw, McEachern C.J. held that that it was extinguished by a series of colonial enactments, including an 1859 Proclamation that “All the lands in British Columbia, and all the Mines and Mineral therein, belong to the Crown in fee.”[xviii]  None of the judges at the Court of Appeal arrived at that same conclusion, and the decision was overruled.[xix]  The Supreme Court of Canada, however, held that a new trial would be necessary, and did not make any finding with regard to extinguishment.  In Tsilhqot’in, the defendants did not make an argument that Aboriginal title had been extinguished, so the question remains open for determination.

What Happens if Aboriginal Title is Found to Exist Over Fee Simple Lands?

This is the big question, given that both fee simple title and Aboriginal title confer the right to exclusive use and occupation.  If a court declares that an Indigenous group has Aboriginal title to lands that are currently held in registered fee simple – not that it previously had Aboriginal title that was extinguished, or that it might have had Aboriginal title if the grant of fee simple had not precluded such a declaration – then is it in effect ruling that the fee simple title is invalid?  That would seem to follow, given the impossibility of two separate owners each having exclusive title – but perhaps the courts will weave some unexpected outcome out of whole cloth.

Are Damages Available for Pre-Declaration Use of Aboriginal Title Lands?

If an Indigenous group is found to have Aboriginal title to a piece of property, then should it be able to recover damages and other pecuniary remedies for use made of that property prior to the declaration?  On the one hand, the Crown and third parties would not have known that the group held Aboriginal title, and judicial writing about damages in the context of Aboriginal title has contemplated damages for future infringements of Aboriginal title, not retroactive compensation.  On the other hand, if Aboriginal title has actually existed ever since the assertion of sovereignty, then limitations and laches defences may be the only bar to awards of damages of a magnitude that reflects the power of compound interest.[xx]

Can Aboriginal Title Exist to Submerged Lands?

In Ahousaht, Garson J. expressed doubt as to whether a claim to submerged lands is legally tenable,[xxi] but in Saugeen, W. Matheson J. was not prepared to rule it out.[xxii]  There are Aboriginal title claims to huge swathes of the ocean offshore of British Columbia, extending far out into the Pacific, as well as to rivers and lakes, though it is difficult to imagine how exclusive physical occupation (the test for Aboriginal title) could be established to most submerged lands, among other issues.

Can Aboriginal Title Co-Exist With the Public Right of Navigation?

If Aboriginal title can exist over submerged lands, then given that Aboriginal title is the right to exclusive use and occupation, would vessels be prohibited from transiting through the waters above the submerged lands?  Or would the common law right of the public to transit all navigable waters remain paramount?  The answer will be significant, not only for offshore waters, but also with regard to navigable rivers.[xxiii]

CONCLUSIONS

It would be unsurprising if some of my fellow practitioners were not more confident than me as to their ability to provide definitive answers to these and other questions.  It would also be unsurprising if we never find out the answers to some of these questions, since there are very good reasons for the Crown and First Nations to pursue negotiated outcomes on land issues rather than pursuing adjudication through the courts.  As well, of course, litigants may choose not to have recourse to all possible pleadings, and judges may deem it appropriate to issue the narrowest possible decisions in this unexplored field.  For now, therefore, it may only be safe to note that for a subject of such significance, there remains much that is uncertain concerning Aboriginal title.

[i] Michael P. Doherty, “Aboriginal Dominion in Canada” (PhD Dissertation, University of Aberdeen, 2017) [unpublished]. <https://abdn.primo.exlibrisgroup.com/discovery/delivery/44ABE_INST:44ABE_VU1/12153219360005941>.

[ii] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.

[iii] See the comments of Southin J.A. in Skeetchestn Indian Band and Secwepemc Aboriginal Nation v. Registrar of Land Titles, Kamloops, 2000 BCCA 525, at paras. 5-6. 

[iv] Delgamuukw v. British Columbia [1997] 3 SCR 1010 at para. 117.

[v] BC Assessment, “Province-Wide Property Assessments” https://info.bcassessment.ca/property-information-trends/property-assessment-of-bc/province-wide.

[vi] Cowichan Tribes v Canada (Attorney General), 2017 BCSC 1575.

[vii] The Council of the Haida Nation v British Columbia, 2017 BCSC 1665.  See also William v. Riverside Forest Products Ltd., 2002 BCSC 1199; Calder et al. v. Attorney-General of British Columbia (1969), 8 D.L.R. (3d) 59, 71 W.W.R. 81 (B.C.S.C.).

[viii] The Constitution Act, 1867, 30 & 31 Vict, c 3.

[ix] William v. British Columbia, 2002 BCSC 1904, at para. 30.

[x] Giesbrecht v British Columbia (Attorney General), 2020 BCSC 174.

[xi] Kwikwetlem First Nation v. British Columbia (Attorney General), 2021 BCCA 311.

[xii] Delgamuukw v. British Columbia, [1997] 3 SCR 1010, at para. 145.

[xiii] Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, at paras. 595-596.

[xiv] Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 SCR 388, at p. 406.

[xv] William v. British Columbia, 2012 BCCA 285 at para. 32.

[xvi] Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15, at para. 256.

[xvii] Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154, at paras. 61-64.

[xviii] Delgamuukw v. British Columbia (1991), 79 DLR (4th) 185 (BCSC).

[xix] Delgamuukw v. British Columbia (1993) 104 DLR (4th) 470 (BCCA).

[xx] Whitefish Lake Band of Indians v. Canada (Attorney General), 2007 ONCA 744.

[xxi] At para. 502.

[xxii] Saugeen First Nation v. The Attorney General of Canada, 2021 ONSC 4181 at para. 330.

[xxiii] Regarding the public right to navigation, see e.g. Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at p. 54.

Reading about the approval by City Council of a plan by which much of Centennial Square is to be turned into a children’s splash park, I felt a familiar dismay.  The project will cost money that could be better spent, is driven by ideology rather than proper planning, and is wilfully blind to the obvious problems that make many people feel uncomfortable in Centennial Square, problems that this proposal will not address.  I was, however, grateful to see that Councillors Hammond, Gardiner, and Coleman voted against the plan.
This has prompted me to write with a request that is not directed to City Council, but to the Times-Colonist itself:  please consider creating a “scorecard” on your website that tracks the voting of councillors on such controversial measures.  It’s a long time until the next municipal election on October 17, 2026, and by then it may be difficult to recall which councillors made the most egregious or self-serving decisions.  While we might remember that, say, Councillor Hammond had a solid voting record that merits another giving him another term, we might not remember all of the decisions that justify voting some other councillors out of office.  An easily-accessed record of each councillor’s voting pattern could be a big help!

Two recent contributors offered conclusions regarding the 1862 smallpox epidemic in Victoria, and whether the actions of the colonial government constituted genocide.  For readers who might wish to make their own assessments, the University of Victoria provides an online collection of historical documents at a site titled “Spirit of Pestilence:  The Smallpox Epidemic in Victoria in 1862”:  https://web.uvic.ca/vv/student/smallpox/index.html

Rather than highlight any of those historical documents as being of particular relevance, may I instead offer a quote from the recent book, The Bright Ages by David M. Perry and Matthew Gabriele:

Simplistic comparisons to the past do violence not just to their time but to ours.  By pretending that this is just like that, we excuse ourselves from trying to really understand the ‘how’ and ‘why’ of the things we lament or the thing we adore.  The historical analogy becomes a simple explanation for what inevitably is a complex phenomenon.  And as historians, it’s always our job to remind people that anyone who offers that type of simplistic narrative is selling something.  It’s always the historian’s job to say ‘it’s more complicated than that.’  Indeed, it is always more complicated than that.

For many, decision-making at election time is no more difficult than
choosing which shirt to put on before going to a sports event.  A Blue
Jays supporter is unlikely to decide to wear a Red Sox shirt to the
stadium, and someone who has voted Liberal (or Conservative or NDP)
their entire lives and whose parents did too won’t give serious
consideration to voting for the local Marxist-Leninist candidate.

The decision-making process may be slightly more difficult for those
who cast their vote along ideological lines, or on the basis of a
single issue such as gun control or the Middle East or immigration:
they just have to figure out which candidate or party most closely
aligns with their views and then vote accordingly.

But what about people whose modest goal is to elect a government that
will try to prevent climate change from causing the collapse of
civilization, closely followed by the extinction of humanity?  Is it
too much to ask of our political system that they should be able to
cast a ballot unstained by the fall of their bitter tears in the
voting booth?

As someone whose own voting over the past forty years has always been
on the basis of calculations about climate change – sometimes voting
for a candidate with decent views who had a chance of getting into
office, sometimes voting for an eco-friendly candidate with no
prospect of success in the hopes that the mainstream parties might
adjust their own policies to try to capture the climate vote – I
confess that the prospect of the pending federal election has me
befuddled.

Like 39.5% of voters, I cast my vote for the Liberal Party of Canada
in 2015, thrilled to at last be able to vote for a government that
promised to take strong action on climate change.  Three years later,
I – like many others – quit the Liberals when they bought the Kinder
Morgan pipeline.  How could a prime minister and cabinet members who
espoused the importance of fighting climate change make the policy
choice to try to expand bitumen production and accelerate climate
change?  What sort of person who genuinely acknowledged the threat to
the existence of human life posed by climate change could say that the
only possible thing to do with 173 billion barrels of oil in the
ground would be to dig it up, burn it, and send a trillion kilograms
of CO2 into the atmosphere?

Since then, the Liberals have made Canada’s level of subsidies for the
fossil fuel industry the highest per capita in the G20.  Who could
have foretold that the Trudeau Liberals would be worse than the Harper
Conservatives on climate change?

For those of us who live outside of Quebec, making our decisions on
how we should cast our vote in the next federal election is going to
be difficult.  Although the Liberals are awful on climate change, the
O’ Toole Conservatives are even worse.  They appear to have decided to
content themselves with embracing fossil fuels and at least
guaranteeing themselves some seats from the oilpatch rather than
gambling on forming the government by adopting a real climate plan.
The Singh NDP appears unable to condemn fracking and LNG exports
despite the mounting evidence that the methane emitted from the
natural gas industry makes it in some ways the most immediate threat
to a livable climate.  And if it’s necessary to mention the PPC at
all, well, let’s just remember what Walter Sobchak said to the Dude
about nihilists.

So that leaves the Greens, a party which currently seems determined to
prove it is only qualified to govern the Duchy of Grand Fenwick, or
maybe Freedonia, and which is choosing to try to make us forget that
it even has the climate high ground by its squabbles over social
justice issues.  I suppose I might vote for them, but do they have to
make it seem so futile?

The very worst thing is that as much as I’d like to blame all of these
politicians for failing us, I can’t help concluding that it’s us
instead. How did we let human survival become politically
unachievable?

Can voters make a “wrong” choice?  Or is the essence of democracy that voters are free to vote for whomever they wish, no matter how perverse or harmful the outcome might be?

We recognize that the reasons voters choose one candidate or party over another will generally reflect personal values and decisions about questions that are perennially open to debate.  When what is at stake in an election is the capacity for the Earth to support human life, however, such political relativism surely cannot apply.  If voters elect a government knowing that that government will seek to promote human extinction rather than prevent it, that would have to mean that their political system had failed.  Rather than primarily reflecting the merits or flaws of the candidates, such a result would be an indictment of voters and of the democratic political system itself.  After all, even if voters can legitimately choose to vote for their own extinction, they cannot be entitled to impose a dystopian future followed by extinction on future generations.

In our time, these are not abstract issues.  Every day provides fresh evidence of the reality of climate change and an additional selection of its flood and fire victims to populate our news feeds.  And we know, those of us old enough, that for over thirty years we have all chosen governments that have done almost nothing about the most serious threat we face as a species.

Voters around the world will all have to face up to that fact very soon, and for Canadians that will happen in the next federal election on October 21^st.  As things stand, it appears that four of five national parties will run on platforms of taking either no action or insufficient action to prevent climate change.  The leader of the People’s Party insists that carbon dioxide is harmless and that people must be confusing it with carbon monoxide.  A year after its leader promised to “soon” release a climate plan, the Conservative Party has still not done so, but threatens to scrap the carbon tax that is key to the current national approach.  The Liberal Party has stuck with climate targets set by the previous administration which it has itself labelled as inadequate, and has notoriously purchased a pipeline in order to attempt to facilitate expansion of bitumen extraction and exports.  The New Democratic Party supports the fracking and export of natural gas, despite that making it impossible to meet CO2 emission reduction targets.  That just leaves the Green Party – which has notably won the most recent federal by-election – and while no one can doubt its good intentions regarding climate change, its plans for actually fighting it are vague.

Five months remain during which these political parties can, if they choose, add to their platforms the essential components for fighting climate change, including the adoption of enforceable statutory targets.  Whether or not they do so will demonstrate the adequacy or inadequacy of Canada’s party system.

If, however, they choose to run on platforms that do not include sufficient action on climate change, what does that say about Canadian democracy itself?  There is no longer either any scientific uncertainty or room for delay that might allow responsible voters to cast their votes for candidates whose platforms include incentivizing climate change rather than preventing it.  And it is not as if parties’ support for the fossil fuel industries are hidden or that they are trying to sneak them in.  Those who vote for candidates whose plans include making the earth uninhabitable for humanity cannot plausibly deny complicity in those plans.

So what would such an outcome say about democracy, or at least about democracy as practiced in Canada?  The Greek historian Polybius in his analysis of the constitution of the Roman Republic argued that constitutions – and people – should be judged on how they react to difficulties and rapid changes.  If Canadians, in effect, once again vote to promote climate change rather than to prevent it, then that will be a terrible indictment of us and our system of government.  The Roman Republic ultimately did not survive; will we?