In British Columbia, property rights are facing significant challenges following a recent ruling by the B.C. Supreme Court. The court determined that Aboriginal title exists on 800 acres of land in Richmond, a suburb of Vancouver. This ruling stated that Aboriginal title is "senior and prior" to fee simple interests, raising concerns about the implications for property rights in the region.

As a result of this decision, there is increased scrutiny on Aboriginal title claims, particularly those involving Kamloops and the Sun Peaks ski resort. The B.C. government has also been actively conferring Aboriginal title across the province, making agreements such as those on Haida Gwaii to transfer control over land use.

The roots of this issue can be traced back to the 1982 Canadian Constitution, which did not include rights to private property but guaranteed existing Aboriginal rights and title. Over the years, the Supreme Court of Canada has broadened the interpretation of these rights, culminating in the recent Richmond decision, which is currently under appeal. The appeal will first go to the B.C. Court of Appeal, and potentially to the Supreme Court, a process that could take years.

In addition to court rulings, the federal government has taken steps to support Indigenous rights. In 2015, the Trudeau administration committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which asserts that Aboriginal groups have rights to own, use, develop, and control lands they traditionally occupied. In 2019, the B.C. legislature incorporated UNDRIP into provincial law through the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which mandates that B.C. law align with UNDRIP.

The question arises: what can be done to address the tensions between Aboriginal title and private property rights? Amending the Canadian Constitution is a complex process, and repealing the section on Aboriginal rights is seen as nearly impossible. Similarly, adding guarantees for private property rights to the Charter would be a daunting task.

Last week, Dwight Newman, a law professor at the University of Saskatchewan, proposed a potential solution. He suggested using Section 43 of the Constitution, which allows for amendments that apply to one or more provinces. This section could enable British Columbia to pass a resolution with the federal Parliament to prioritize private property rights over Aboriginal title in the province.

Newman pointed out that Section 43 has been successfully used in the past to make specific amendments, such as altering school rights in Quebec and Newfoundland and adding linguistic rights in New Brunswick. However, the application of Section 43 remains uncertain, as the Supreme Court has not clarified its scope. Previous amendments have been minor adjustments rather than significant changes to the constitutional framework.

If Section 43 were to be interpreted broadly, it could theoretically allow for substantial amendments, but it would require cooperation from both the provincial and federal governments. Additionally, B.C. law mandates that any such changes must first be approved by a referendum, complicating the process further. The ongoing legal and political developments in British Columbia highlight the complexities surrounding property rights and Aboriginal title in the province.