B.C. Indigenous land claims decision leaves British Columbians in limbo

The Cowichan, who are based mainly on Vancouver Island, claimed they had a village on an island that is now part of Richmond that they used seasonally. They had to prove with evidence that they were fearsome enough that other groups—like the Musqueam and Tsawwassen, who incidentally were both part of the opposition to the Cowichan claim—would have been scared and thus reluctant to use the claimed area when the Cowichan were away.

The recent decision of the British Columbia Supreme Court in Cowichan Tribes v Canada (Attorney General) (cited as 2025 BCSC 1490) granting a declaration of Aboriginal title over city-owned land in Richmond and fishing rights in the Fraser River has already drawn attention and concern.

This is because the judgment’s reasoning on Aboriginal title has potentially widespread implications for private property in B.C., and perhaps elsewhere. At the same time, the judgment is also totally inaccessible for most readers. At a monster length of more than 3,700 paragraphs, it does not yield legal guidance easily.

The judgment comes after a trial that started in 2019, with more than 500 trial days. The judgment lists out more than 80 lawyers involved so far. It was the longest trial in Canadian history, and the case will probably ultimately reach the Supreme Court of Canada—perhaps with a decision by the end of the decade.

Estimating the likely costs based on the length of proceedings, and normal legal fees, I will not be surprised if overall legal costs in the Cowichan Tribes case approach or even exceed $100 million by the time all is said and done.

What does $100 million of such spending get you these days? A few things.

First, and explaining significant parts of the expense, it got a lot of detailed evidence from documents, from experts, from Aboriginal oral history, and other forms that the trial judge, Madam Justice Young, considered against the established Aboriginal title test. In other words, the trial allowed a multitude of sources, many new, for the trial judge to try to apply the existing rules on Aboriginal title.

That test looks for whether a claimant group has proven “sufficient” and “exclusive” occupation of land as of just prior to the date of assertion of European/Canadian sovereignty—in this part of B.C., that date is 1846. The Cowichan, who are based mainly on Vancouver Island, claimed they had a village on an island that is now part of Richmond that they used seasonally. They had to prove with evidence that they were fearsome enough that other groups—like the Musqueam and Tsawwassen, who incidentally were both part of the opposition to the Cowichan claim—would have been scared and thus reluctant to use the claimed area when the Cowichan were away. Sorting through these facts and other elements pertinent to the Aboriginal title test took massive amounts of evidence and time.

Second, the spending includes consideration of various defences that parties to the case mounted. The federal lawyers, the provincial lawyers, and City of Richmond lawyers all made different arguments. Both the federal and provincial lawyers were restricted in what they could argue, based on a combination of their own policies and on the judge’s rejection of some of their arguments as inconsistent with other legal acts, such as B.C.’s recognition of title in the Haida Agreement. This is an important recognition of how the trial judge’s decision was influenced by discretionary provincial policy in the province, namely its recognition of the Haida Nation’s title on their claimed land.

The City of Richmond was less restricted in its defence but critically failed with portions of its defence that might apply to private landowners. For example, the lands the City of Richmond owned were determined to not have been acquired “for value,” which means that the City didn’t buy them. The failure of meeting this test means the City of Richmond was not afforded the significant protection in property law that many private landowners would receive (under a technical category of “bona fide purchasers for value”).

Third, the spending gets you a decision that included some unclear paragraphs that say there will be interesting questions to be faced down the road, including what happens when there’s an Aboriginal title claim directly over privately owned land. Some text from the decision in the case suggest Aboriginal title might take priority over any other property interest, but private landowners will have a future chance to invoke defences such as the “bona fide purchaser for value” concept. Despite the fact the Cowichan avoided these issues for now by not asking for a declaration concerning any private land, those cases are coming. The broader trajectory is precisely towards that clash, and there are active cases of that type elsewhere, including over major private landholdings throughout New Brunswick.

There’s not any definitive legal clarity from the judgment on this crucial point of how Aboriginal title and private property interact. For $100 million, the trial delivered lingering uncertainty and heightened risks on the legal status of property, which influences the economy and residents across the province, not just those directly involved in the case.

This issue has been key in motivating a provincial government appeal, which is unlikely to take less than a year to resolve and could take two or even three years, and even then it’s likely to move on to the Supreme Court of Canada. Until then, British Columbians, including Indigenous Peoples, will continue to face heightened uncertainty and the economic costs it imposes.

Dwight Newman

Professor of Law, University of Saskatchewan

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Trudeau’s Gone So Why Does Everything Still Feel Broken?

Alberta / 7 hours ago

Canada’s equalization program is broken and requires major overhaul

Fraser Institute / 8 hours ago

B.C. Indigenous land claims decision leaves British Columbians in limbo

Alberta

Canada’s equalization program is broken and requires major overhaul

Published on August 23, 2025

Todayville

From the Fraser Institute

By Tegan Hill and Nathaniel Li

Due to the “fixed-growth rule” introduced by the Harper government in 2009, the amount spent on equalization increases whether or not the gap between ”have not” and “have” provinces increases or decreases. For example, from 2007/08 to 2020/21, equalization payments increased by nearly 60 per cent despite the gap in fiscal capacities between richer and poorer provinces actually shrinking over that period.

As the Alberta Next Panel, which is tasked with assessing Alberta’s role in Confederation, reconvened last week, Canada’s equalization program remains near the top of the agenda. At the same time, the Alberta government is backing a legal challenge led by Newfoundland and Labrador arguing that the program does not achieve its intended purpose. While individuals may hold differing opinions on the program’s core principle—to ensure reasonably comparable public services delivered at reasonably comparable tax rates across the country—it’s clear that any reasonable assessment would find the current equalization system is broken.

Ottawa collects taxes from Canadians across the country then redistributes money to so-called “have not” provinces through equalization. To determine who gets money, the federal government calculates the “fiscal capacity” of each province—that is, a province’s ability to raise revenue. Basically, the formula applies a tax rate to different sources of income (including personal income, business income, resources, etc.) to determine how much revenue a province could generate. In theory, money from provinces with higher fiscal capacity (i.e. greater ability to raise revenue through taxes) is transferred to provinces with lower fiscal capacity.

This year, equalization payments will total a projected $26.2 billion. Seven provinces including Ontario, Quebec, Manitoba and all of Atlantic Canada will receive equalization payments. Alberta, British Columbia and Saskatchewan will not receive payments. Again, in theory, these three provinces have a greater ability to generate government revenue so they will not receive equalization.

But here’s the problem. Due to the “fixed-growth rule” introduced by the Harper government in 2009, the amount spent on equalization increases whether or not the gap between ”have not” and “have” provinces increases or decreases. For example, from 2007/08 to 2020/21, equalization payments increased by nearly 60 per cent despite the gap in fiscal capacities between richer and poorer provinces actually shrinking over that period.

If equalization is meant to close the gap between provinces, then the amount spent should reflect the gap. But the formula—and thus, the program—is broken.

More broadly, the principle of equalization—again, to ensure that all provinces can deliver reasonably comparable services at reasonably comparable tax rates—assumes that provinces with higher incomes (and a greater ability to generate tax revenues) will not receive equalization while provinces with lower incomes will receive equalization. Yet in 2020, for example, Newfoundland and Labrador, which received equalization, had higher income (measured by GDP per person) than B.C., which did not receive equalization. In 2018, Ontario had higher income than B.C., but Ontario was a recipient while B.C. was not. Clearly, there’s a problem with how the formula determines a recipient versus a contributing province.

Another problem is the treatment of subsidized electricity in Quebec and Manitoba. The Quebec government, for example, provides below-market electricity prices to Quebecers—even though charging the market rate would provide more revenues to Hydro Quebec, which manages the generation, transmission and distribution of electricity in the province. But the equalization formula only accounts for actual resource revenues and doesn’t account for this lower-than-market electricity rate in determining Quebec’s ability to raise revenues. In fact, an increase in Hydro Quebec’s profits of $100 million would result in a decrease in equalization payments of an estimated $70 million. Simply put, the equalization formula underestimates Quebec’s ability to raise revenue from its electricity provision while effectively penalizing provinces that don’t provide subsidies.

Ironically, the formula does not follow that same approach for Alberta, which has no provincial sales tax. Again, the formula accounts for Quebec’s actual resource revenue, not hypothetical resource revenue if Quebec charged market rates for its electricity. Yet the formula includes a hypothetical Alberta provincial sales tax when determining Alberta’s fiscal capacity. So, the formula does not penalize Quebec for foregone hydro revenues, but does penalize Alberta for foregone sales tax revenues. Quebec also bans fracking (as did Nova Scotia until lifting its ban), but the equalization formula does not apply any forgone hypothetical fracking-related resource revenue to Quebec. This inconsistency in the treatment of different types of revenue in different provinces is yet another sign of a fundamentally broken equalization system.

Reasonable people can debate the core principle of Canada’s equalization program, but as the Alberta Next Panel continues discussions, policymakers should recognize that the current system is badly broken and requires a major overhaul.

Tegan Hill

Director, Alberta Policy, Fraser Institute

Nathaniel Li

Senior Economist, Fraser Institute

Agriculture

Canada should eliminate its supply management system—with or without Trump

Published on August 23, 2025

Todayville

From the Fraser Institute

By Alex Whalen and Jake Fuss

Post-deregulation Australia’s dairy industry increased exports by $3 billion. Exports now account for more than 30 per cent of Australia’s total dairy production (and 20 per cent in New Zealand, which also ended its supply management system) compared to less than one per cent in Canada.

In one of the latest salvos in his trade war, President Trump recently took aim at supply management in Canada—a set of regulations that restricts supply and controls imports to allow Canadian dairy producers of milk, eggs and poultry to maintain higher prices for their products than would otherwise exist in a competitive market.

In his attacks on Canada, Trump gets a lot wrong. But in fact, if Ottawa and the provinces dismantled our supply management system in a fair and productive way, it would be a rare win-win in trade negotiations with the Trump administration. And a win-win for both Canadian consumers and Canadian farmers.

For lessons in reform, Canada can look to other countries. For example, Australia’s dairy industry was heavily regulated for most of the 20th century, but by the 1990s, the weight of higher prices for supply-managed goods created public pressure for reform. The country also faced pressure from its trading partners to stop shielding its domestic dairy industry on grounds of fairness, much like the U.S. pressure Canada faces today.

So, around the turn of the century, the Australian government gradually dismantled its supply management system. Immediately following deregulation, milk prices fell by 12 cents per litre in Australia. Since then, prices have remained relatively flat, with price increases below the rate of inflation.

In other words, when the Australian dairy industry transitioned from a tightly-regulated protected industry to a more open industry with competition from both domestic and international firms, consumers reaped the rewards.

Of course, opponents of reform in Canada (including the dairy lobby) claim that supply management is necessary to help Canadian farmers survive and thrive. But in fact, after the Australian government eliminated supply management, the farming industry was arguably stronger. Some farmers exited the industry (and were compensated for doing so), and those that remained were more productive and more competitive in export markets.

In fact, post-deregulation Australia’s dairy industry increased exports by $3 billion. Exports now account for more than 30 per cent of Australia’s total dairy production (and 20 per cent in New Zealand, which also ended its supply management system) compared to less than one per cent in Canada. Despite Canada’s larger economy and population, both Australia and New Zealand export more dairy products than Canada.

At the same time, the Australian government introduced programs to financially support farmers to either help them adjust their operations or exit the industry. Farmers who remained in the industry experienced a 56 per cent increase in revenues and a substantial increase in the value of exports.

Moreover, according to a study from 2011, government subsidies for farmers equalled six per cent of total farm receipts in Australia and one per cent in New Zealand compared to 18 per cent in Canada. Which means that, due largely to Canada’s supply management system, the burden on taxpayers in Canada is far heavier than in those two countries.

Here in Canada, reform requires cooperation between the federal and provincial governments. Currently, Ottawa controls the trade component of supply management through restrictive import tariffs, while the provinces work alongside the federal government to regulate milk marketing boards, which set minimum prices for consumers.

In the face of President Trump’s aggressive trade actions, the premiers should agree to work with the Carney government to finally eliminate Canada’s arcane supply management system. It won’t be easy—politicians are slow to challenge entrenched interests and constituencies. But as the experience of our other allies clearly shows, governments can reform the dairy industry to the benefit of both consumers and farmers. There could be a silver lining to Trump’s attack on supply management in Canada.