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GUNTER: Charter protections put in danger by court decision, federal agreement

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Property rights are at the centre of individual freedom. If governments have limited ability to tell you what you may do on or to your property (including your body), then you will enjoy a high degree of individual human rights.

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That’s what makes the recent court decision granting “Aboriginal title” to land under dozens of homes in the Vancouver suburb of Richmond so dangerous. And it’s what makes the even more recent agreement between the federal government and the Musqueam band to grant the Musqueam undefined title over much of Greater Vancouver equally threatening.

GUNTER: Charter protections put in danger by court decision, federal agreement Back to video

If you can be stripped of your property rights by a crusading judge or by a government bent on advancing “reconciliation,” then all of your Charter rights are hanging by similar threads.

Last August, B.C. superior court Justice Barbara Young gave title to over 800 acres of Richmond, B.C. to the Cowichan Tribes who used to use the land as a summer hunting and fishing camp. Young acknowledged that her decision superseded the titles of about 150 private homeowners, the federal government, several businesses and a golf course.

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The Cowichan have mostly never lived in the area. Their current reserves are on Vancouver Island. And they never bothered to demonstrate to the court that their use of the Richmond lands (which ended about a century-and-half ago) was permanent and continuous — important conditions for establishing Aboriginal title.

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The Cowichan would come across the strait from the Island for a couple if months each summer and load up on salmon before returning home.

Yet that was enough for Justice Young to override private property rights dating back decades.

Her decision is at odds even with activist decisions by the Supreme Court and is, thus, a troubling expansion of Aboriginal title.

In its 1997 Delgamuukw decision, the court recognized the equality of Aboriginal title to ordinary land title. However, it ruled that to claim title, Indigenous bands had to prove their ancestors had continuous and exclusive use of the parcel in question.

Justice Young basically negated the exclusive and continuous requirement.

People in the Richmond area covered her decision now claim to be having trouble securing mortgages because banks are squeamish about lending money when ownership of their property is up in the air.

The Musqueam deal is not as specific as the Richmond court decision. It is open to future interpretation — a lot of interpretation! — by bureaucrats, politicians and judges.

So, initial reassurances from the Carney government and the Musqueam leadership are meaningless. Both Ottawa and the Musqueam have claimed their agreement does not give the band direct title over the lands in question. But the agreement does promise future negotiations to work out the details.

The Rights Recognition Agreement from February “recognizes that Musqueam has Aboriginal rights, including title, within their traditional territory and establishes a framework for incremental implementation of rights.”

That sounds worrisome to me.

And just what do the Musqueam claim as their traditional territory? According to the band itself, “Vancouver, Burnaby, Richmond, New Westminster, Delta, North Vancouver, West Vancouver, Surrey … and Coquitlam,” plus the University of British Columbia (UBC) and Vancouver International Airport.

The inclusion of UBC is poetic justice, since several UBC professors and students have been instrumental in the “land back” movement.

But how is this a threat to property in the rest of Canada? Wasn’t Aboriginal title extinguished in the other nine provinces through treaties?

Yes, but is it all that difficult to imagine crusading judges and “progressive” politicians in other jurisdictions claiming the federal government failed to live up to its end of the treaties, thereby invalidating them and placing the whole country in jeopardy?

If we lose the right to freely hold and enjoy our property, then governments may do whatever they wish to our other individual rights, even in the name of reconciliation.

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