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Fraser Institute

Aboriginal rights now more constitutionally powerful than any Charter right

Published

1 month ago

6 minute read

From the Fraser Institute

By Bruce Pardy

A judge of the British Columbia Supreme Court recently found that the Cowichan First Nation holds Aboriginal title over 800 acres of government land in Richmond, British Columbia. Wherever Aboriginal title is found to exist, said the court, it’s a “prior and senior right” to fee simple title, whether public or private. That means it trumps the property that Canadians hold in their houses, farms and factories.

In Canada, property rights do not have constitutional status. No right to property is included in the Charter of Rights and Freedoms. Fee simple title is merely a gloss on the state’s constitutional authority to tax, regulate and expropriate private property as it sees fit. But Aboriginal rights are different. They have become more constitutionally powerful than any Charter right.

In 1968, then-Justice Minister Pierre Trudeau released a consultation paper that proposed a constitutional charter of human rights. It was the first iteration of what would become the Charter. In the paper, Trudeau proposed to guarantee a right to property. So did drafts that followed. But some provincial governments were dead set against entrenching property rights. By 1980, property had been dropped from proposals. The final version of the Charter, adopted in 1982, does not mention it. Canada’s Constitution does not protect property rights.

Except for Aboriginal property. Trudeau’s 1968 paper made no mention of Aboriginal rights, nor did drafts leading up to the 1980 proposal. Aboriginal groups and their supporters launched a campaign to have Aboriginal rights recognized. They succeeded just in time. Section 35, essentially an afterthought, recognized and affirmed the “existing aboriginal and treaty rights of the aboriginal peoples of Canada.” That section was put into the Constitution but not as part of the Charter. That might sound like section 35 is weaker than a Charter right, but it’s the opposite.

Section 35 affirms Aboriginal rights that existed as of 1982. But since 1982, the Supreme Court of Canada has used section 35 to champion, enlarge and reimagine Aboriginal rights. The Court has “discovered” rights never recognized in the law before 1982. In 1997, it articulated a new vision of Aboriginal title. In 2004, it established the Crown’s “duty to consult.” In 2014, it recognized Aboriginal title over a tract of Crown land.  In 2021, it gave Aboriginal rights under section 35 to an American Indigenous group.

Now the B.C. court in the Cowichan decision has said that Aboriginal title takes precedence over private property. Last November, a judge of the New Brunswick King’s Bench suggested similarly. Where a claim of Aboriginal title succeeds over land held in fee simple, she said, the court may instruct the government to expropriate the private property and hand it over to the Aboriginal group.

Governments and legislatures have shown little inclination to turn back these developments. But even if they wanted to, the Constitution stands in the way.

Section 33 of the Charter, the “Notwithstanding clause” (NWC), allows provincial legislatures and the federal Parliament to enact legislation notwithstanding the Charter rights guaranteed in sections 2 and 7 to 15. That means that they can pass statutes that might infringe these Charter rights. Use of the NWC clause prevents courts from striking down the statute as unconstitutional. The main part of the NWC reads:

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Section 35 is not part of the Charter. It is not subject to the NWC. Legislatures cannot ignore it, legislate around it, or change its meaning. Barring a constitutional amendment, courts have exclusive domain over the scope and application of section 35. In the constitutional hierarchy, Aboriginal rights rest above the “fundamental freedoms” and rights of the Charter.

Lest there was any doubt about that status, section 25 of the Charter spells it out. Charter rights and freedoms, the section says, “shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada.”

That does not mean that Aboriginal rights are absolute. Legislation or government action may sometimes infringe Aboriginal rights. But courts, not legislatures, control when, where, and under what circumstances that can happen. The Supreme Court of Canada has established the process and criteria by which governments must justify infringements of section 35 to the courts’ satisfaction.

Section 35, like much of the rest of the Constitution, is subject to an onerous amending formula. It cannot be easily changed or repealed.

Bruce Pardy

Professor of Law, Queen’s University
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Fraser Institute

Courts and governments caused B.C.’s property crisis—they’re not about to fix it

Published on November 14, 2025

By

From the Fraser Institute

By Bruce Pardy

In British Columbia, property rights are in turmoil. The B.C. Supreme Court recently declared that Aboriginal title exists on 800 acres of land in Richmond, a suburb of Vancouver. Aboriginal title, said the court, is “senior and prior” to fee simple interests. In the shadow of the decision, given the implications, Aboriginal title claims are receiving more attention. Kamloops and Sun Peaks ski resort are targets in one such claim. Meanwhile, the B.C. government has been conferring Aboriginal title across the province too. It continues to make agreements, such as on Haida Gwaii, to transfer control over land use in the province.

Courts and governments have caused this problem. The framers of Canada’s new constitution, adopted in 1982, excluded rights to private property. But at the last hour, they guaranteed existing Aboriginal rights and title. Over decades, the Supreme Court of Canada has expanded the scope of those rights. The recent decision about Richmond is a culmination of its work. That decision is under appeal, first to the B.C. Court of Appeal. After that, we may find out if the Supreme Court approves. But that could take years.

It’s not just the courts. In 2015, the Trudeau government agreed to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP says that Aboriginal groups have the right to own, use, develop and control any lands that they traditionally occupied or used. In 2019, the B.C. legislature incorporated UNDRIP into BC law. Known as DRIPA, the statute requires B.C. law to be consistent with UNDRIP. The NDP government has been granting Aboriginal title and control across the province accordingly.

What can be done? The Canadian constitution has an onerous amending formula. Repealing the section on Aboriginal rights would be next to impossible. So would adding private property guarantees to the Charter. But last week, Dwight Newman, professor of law at the University of Saskatchewan, suggested an alternative in the Post. Rather than attempt wholesale change, he proposed an amendment specific to B.C.

Section 43 is one of the ways to amend the Canadian constitution. It allows changes “in relation to any provision that applies to one or more, but not all, provinces.” The requirements are simple. The legislature in one province and the federal Parliament must both pass a resolution declaring the amendment. That’s it. Such a resolution, Newman suggests, could guarantee that private property in B.C. has priority over Aboriginal title.

He might be right. Section 43 has been used, for example, to alter constitutional denominational school rights in Quebec and Newfoundland. In 1993, New Brunswick used Section 43 to add a provision to the Charter about linguistic rights in the province.

But Section 43 might be narrower than hoped. The New Brunswick amendment was not challenged in court at the time of its enactment. So, yes, Section 43 was used to change the Charter, but not with judicial benediction. Moreover, the Supreme Court has not considered the ways in which Section 43 can be used. Section 43 amendments so far have been minor, mere “tweaks” to the constitutional order. We do not know what meaning the Court might give to “any provision that applies to one province.” It could mean any new provision, but more likely it means any existing provision that applies only to the province. Which would rule out using Section 43 to protect property rights from Aboriginal title in B.C. If the Court allowed Section 43 to be used for that purpose, then Section 43 could theoretically be used for anything, including amending the Charter wholesale until each province had its own version.

Even if Section 43 could be used to fix the property mess, it requires both the province and Ottawa to act. In addition, B.C. legislation requires that such changes be first approved by referendum. The B.C. and federal governments have helped to cause the crisis and continue to do so. They seem intent on undermining the system of land tenure in their own society. They are not likely to disrupt the constitution to frustrate their own work.

Moreover, there are other, simpler places to begin. The federal government could reverse its support for UNDRIP. The B.C. legislature could repeal DRIPA. Neither sitting government will do that. Few political actors will step out of line on Aboriginal questions, even to defend the country’s land, economy, and people. Will we discover whether there is anything more Canadian, after all, than acquiescence? In Canada, truth and reconciliation has morphed into fiction and capitulation.

Canada’s property crisis runs deep, and not just in B.C. Aboriginal rights are widely regarded as the natural and proper order of things. Special status for Aboriginal people is deeply ingrained in Canadian culture as well as the constitution. But it is dead wrong. Legal rights should not depend on lineage or group affiliation. Everyone born in Canada is native to the place. In a free country, laws apply not to distinctive peoples, but to individual people and their private property.

Bruce Pardy

Professor of Law, Queen’s University
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Alberta

ChatGPT may explain why gap between report card grades and standardized test scores is getting bigger

Published on November 14, 2025

By

From the Fraser Institute

By Paige MacPherson and Max Shang

In Alberta, the gap between report card grades and test/exam scores increased sharply in 2022—the same year ChatGPT came out.

Report card grades and standardized test scores should rise and fall together, since they measure the same group of students on the same subjects. But in Alberta high schools, report card grades are rising while scores on Provincial Achievement Tests (PAT) and diploma exams are not.

Which raises the obvious question—why?

Report card grades partly reflect student performance in take-home assignments. Standardized tests and diploma exams, however, quiz students on their knowledge and skills in a supervised environment. In Alberta, the gap between report card grades and test/exam scores increased sharply in 2022—the same year ChatGPT came out. And polling shows Canadian students now rely heavily on ChatGPT (and other AI platforms).

Here’s what the data show.

In Alberta, between 2016 and 2019 (the latest year of available comparable data), the average standardized test score covering math, science, social study, biology, chemistry, physics, English and French language arts was just 64, while the report card grade 73.3—or 14.5 per cent higher. Data for 2020 and 2021 are unavailable due to COVID-19 school closures, but between 2022 and 2024, the gap widened to 20 per cent. This trend holds regardless of school type, course or whether the student was male or female. Across the board, since 2022, students in Alberta high schools are performing significantly better in report card grades than on standardized tests.

Which takes us back to AI. According to a recent KPMG poll, 73 per cent of students in Canada (high school, vocational school, college and university) said they use generative AI in their schoolwork, an increase from the previous year. And 71 per cent say their grades improved after using generative AI.

If AI is simply used to aid student research, that’s one thing. But more than two-thirds (66 per cent) of those using generative AI said that although their grades increased, they don’t think they’re learning or retaining as much knowledge. Another 48 per cent say their “critical thinking” skills have deteriorated since they started using AI.

Acquiring knowledge is the foundation of higher-order thinking and critical analysis. We’re doing students a deep disservice if we don’t ensure they expand their knowledge while in school. And if teachers award grades, which are essentially inflated by AI usage at home, they set students up for failure. It’s the academic equivalent of a ski coach looking at a beginner and saying, “You’re ready for the black diamond run.” That coach would be fired. Awarding AI-inflated grades is not fair to students who will later struggle in college, the workplace or life beyond school.

Finally, the increasing popularity of AI underscores the importance of standardized testing and diploma exams. And parents knew this even before the AI wave. A 2022 Leger poll found 95 per cent of Canadian parents with kids in K-12 schools believe it’s important to know their child’s academic performance in the core subjects by a fair and objective measure. Further, 84 per cent of parents support standardized testing, specifically, to understand how their children are doing in reading, writing and mathematics. Alberta is one of the only provinces to administer standardized testing and diploma exams every year.

Clearly, parents should oppose any attempt to reduce accountability and objective testing in Alberta schools.

Paige MacPherson

Associate Director, Education Policy, Fraser Institute

Max Shang

Economist, Fraser Institute
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