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

From the Frontier Centre for Public Policy

By Marco Navarro-Genie

Millions spent, no exhumations. What are we actually mourning?

From Aug. 15 to 17, 2025, the Canadian flag flew at half-mast above the British Columbia legislature. The stated reason: to honour the shíshálh Nation and mourn the alleged discovery of 81 unmarked graves of Indigenous children near the former St. Augustine’s Residential School in Sechelt.

But unlike genuine mourning, this display of grief lacked a body, a name or a single verifiable piece of evidence. As MLA Tara Armstrong rightly observed in her open letter to the Speaker, this symbolic act was “shameful”—a gesture unmoored from fact, driven by rumour, emotion and political inertia.

The flag was lowered in response to claims from University of Saskatchewan archaeologist Dr. Terry Clark. According to announcements from both 2023 and 2025, Dr. Clark “discovered” 81 unmarked graves using ground-penetrating radar—a tool that detects changes in soil, not bones. Its signals require interpretation—and in this case, the necessary context never arrived.

Even more concerning, there has been no release of names or records. Chief Lenora Joe of the shíshálh Nation said the names of the children are “well known” to Elders. Yet none have been made public: not a single missing child reported, no date of disappearance, no death certificate, not even a family willing to speak openly.

Instead, we’re being asked to accept deeply held recollections as conclusive proof—without corroborating evidence.

The original 40 anomalies—first announced in April 2023—appear to be located beneath the paved parking lot of the band’s administrative and cultural hub, the House of Hewhiwus complex. This land has been excavated before. At no point were any human remains discovered. As former Chief Warren Paull confirmed, “remains were never found” and the stories circulating then “don’t include burial at all.” The pattern of red dots in the band’s video—a tidy grid beneath the asphalt—looked less like sacred ground and more like a plumbing schematic.

The grief narrative, meanwhile, was presented with great care. Professionally produced videos showed solemn Elders, blurred radar images and mournful speeches—all designed to evoke emotion while discouraging inquiry. In one video, Chief Joe warned that asking questions would “cause trauma.”

But reconciliation doesn’t mean blind acceptance. Silencing questions isn’t healing—it risks turning reconciliation into a one-way narrative.

In a 2025 follow-up, Dr. Clark reported another 41 anomalies—this time likely in the community’s own cemetery on Sinku Drive. Brief footage confirms that GPR was conducted among existing gravesites, where decayed wooden markers would naturally result in “unmarked” burials. As Tara Armstrong noted, finding undocumented graves in or near a cemetery is about as surprising as spotting seagulls at a landfill.

Even so, political leaders continued to validate the narrative.

The B.C. government endorsed the claims with another round of symbolic mourning. In doing so, it lent the power of the state to what increasingly resembles collective fiction. Since 2021, similar claims across Canada have triggered government apologies, funding announcements and media headlines—often without physical evidence.

Residential schools were bureaucratic institutions. They kept meticulous enrolment and death logs. The Truth and Reconciliation Commission, with eight years of access to these archives, conducted more than 6,500 interviews and reviewed thousands of documents. It found no cases of children who disappeared without a trace. Despite this, $2.6 million in federal funds was spent in 2025 alone on the Sechelt investigation.

This isn’t reconciliation: it’s mythmaking dressed up as healing. Worse still, it undermines real tragedies by replacing verifiable history with folklore dressed up in government robes.

Governments should not promote unverified stories with ceremonial gestures. Flags lowered at half-mast should honour actual deaths, not narrative convenience. Public policy, especially around historical reckoning, must be rooted in fact, not feelings.

If reconciliation is to mean anything, it must be anchored in shared truth. And the truth is, we cannot mourn 81 phantom children because they almost certainly never existed.

Canadians must start insisting on evidence. The standard of proof should be no different here than in any serious allegation. The principle that underpins our justice system—innocent until proven guilty—must also guide our view of history.

State-sponsored guilt rituals disconnected from verifiable fact are not justice.

They are theatre.

And not even good theatre.

Marco Navarro-Genie is vice-president of research at the Frontier Centre for Public Policy and co-author, with Barry Cooper, of Canada’s COVID: The Story of a Pandemic Moral Panic (2023). With files from Nina Green.