By Peter Best

The worst thing that can happen to a property owner isn’t a flood or a leaky foundation. It’s learning that you don’t own your property – that an Aboriginal band does. This summer’s Cowichan Tribes v. Canada decision presented property owners in Richmond B.C. with exactly that horrible reality, awarding Aboriginal
title to numerous properties, private and governmental, situated within a large portion of Richmond’s Fraser River riverfront area, to Vancouver Island’s
Cowichan Tribes. For more than 150 years, these properties had been owned privately or by the government. The Cowichan Tribes had never permanently lived
there.

But B.C. Supreme Court Justice Barbara Young ruled that because the lands had never been formally surrendered by the Cowichans to the Crown by treaty, (there
were no land-surrender treaties for most of B.C.), the first Crown grants to the first settlers were in effect null and void and thus all subsequent transfers down
the chain of title to the present owners were defective and invalid.

The court ordered negotiations to “reconcile” Cowichan Aboriginal title with the interests of the current owners and governments. The estimated value of the
property and government infrastructure at stake is $100 billion.

This ruling, together with previous Supreme Court of Canada rulings in favour of the concept of Aboriginal title, vapourizes more than 150 years of legitimate
ownership and more broadly, threatens every land title in most of the rest of B.C. and in any other area in Canada not subject to a clear Aboriginal land surrender
treaty.

Behind this decision lies a revolution – one being waged not in the streets but in the courts.

In recent years Canadian judges, inspired and led by the Supreme Court of Canada, have become increasingly activist in favour of Aboriginal rights, in effect
unilaterally amending our constitutional order, without public or legislative input, to invent the “consult and accommodate” obligation, decree Aboriginal title and grant Canadian Aboriginal rights to American Indians. No consideration of the separation of powers doctrine or the national interest has ever been evidenced by
the Court in this regard.

Following the Supreme Court’s lead, Canadian judges have increasingly embraced the rhetoric of Aboriginal activism over restrained, neutral language, thus
sacrificing their need to appear to be impartial at all times.

In the Cowichan case the judge refused to use the constitutional and statutory term “Indian,” calling it harmful, thereby substituting her discretion for that of our
legislatures. She thanked Aboriginal witnesses with the word “Huychq’u”, which she omitted to translate for the benefit of others reading her decision. She didn’t
thank any Crown witnesses.

What seems like courtesy in in fact part of a larger pattern: judges in Aboriginal rights cases appearing to adopt the idiom, symbolism and worldview of the
Aboriginal litigant. From eagle staffs in the courtroom, to required participation in sweat lodge ceremonies, as in the Supreme Court-approved Restoule decision,
Canada’s justice system has drifted from impartial adjudication toward the appearance of ritualized, Aboriginal-cause solidarity.

The pivot began with the Supreme Court’s 1997 Delgamuukw v. British Columbia decision, which first accepted Aboriginal “oral tradition” hearsay evidence. Chief
Justice Lamer candidly asked in effect, “How can Aboriginals otherwise prove their case?” And with that question centuries of evidentiary safeguards intended
to ensure reliability vanished.

In Cowichan Justice Young acknowledged that oral tradition hearsay can be “subjective” and is often “not focused on establishing objective truth”, yet she
based much of her ruling on precisely such “evidence”.

The result: inherently unreliable hearsay elevated to gospel, speculation hardened into Aboriginal title, catastrophe caused to Richmond private and government property owners, the entire land titles systems of Canadian non-treaty areas undermined, and Crown sovereignty, the fount and source of all real property rights generally, further undermined.

Peter Best is a retired lawyer living in Sudbury, Ontario.

The original, full-length version of this article was recently published in C2C Journal.

By Collin May

Time was a former political leader’s expected role was to enjoy retirement in relative obscurity, resisting the urge to wade into political debate. Conservatives generally stick to that tradition. Ralph Klein certainly did after his term ended. Stephen Harper has made no attempt to upstage his successors. Yet former Alberta Premier Jason Kenney can’t seem to help himself.

From the boardroom of Bennett Jones, one of Calgary’s oldest law firms, Kenney recently offered his thoughts on the unspeakable horrors that await the province should it entertain a debate (perhaps even call a referendum) on separating from Canada. While dismissing Alberta separatists as a “perennially angry minority”, Kenney nevertheless declared a vote on separation would “would divide families, divide communities, divide friends for no useful purpose.” Business partnerships, church and community groups, even marriages and families would break apart, he warned, “shredding the social fabric of the province.”

It was a remarkable burst of untethered hyperbole, but it says more about the former premier than it does about the province he once led.

Kenney’s take on the history of Alberta separatism is telling. It’s a 50-year-old “discredited concept,” he said, whose acolytes “couldn’t get elected dogcatcher in this province.” Exhibit A in his analysis was Gordon Kesler, an Alberta rodeo rider and oil company scout who believed independence was the only way to save Alberta from Ottawa’s depredations. In a 1982 byelection, Kesler got himself very much elected as an MLA under the Western Canada Concept banner. He later lost in the general election to Peter Lougheed’s Progressive Conservatives, but Lougheed did not belittle Albertans for entertaining separatist notions. Instead, he asked for a mandate to fight Ottawa more effectively — and got it.

Kenney, by contrast, ridicules separatists while simultaneously painting them as an existential menace. Worse, he likens them to followers of Vladimir Putin and (perhaps even worse?) Donald Trump. “[I]f you just follow them on social media,” he claimed, one will quickly see that they cheered on Putin’s attack on Ukraine and Trump’s threat of making Canada the 51 st state.

Kenney’s latest intervention fits a pattern. As premier from 2019 to 2022, he could not resist trying to stamp out dissent. During the pandemic, he alienated political allies by dismissing their concerns about mandatory vaccines with contempt. He saw his ouster as UCP leader as the result of a Trumpian-inspired or “MAGA” campaign. UCP party faithful, however, said their rejection of him had far more to do with his top-down leadership style and habit of “blaming other people for the errors he made.”

What’s especially striking about Kenney’s separatist obsession is that he seems to understand as little about Albertans now as he did while premier. Albertans have long debated separation without the province descending into chaos. When Kesler won his seat, people talked about separation, argued its pros and cons, but couples were not running to their divorce lawyers over the issue and business partners were not at each other’s throats.

And there are legitimate reasons for concern about Canada’s social and political structure, as well as the role provinces play in that structure. Canada’s institutions operate largely on an old colonial model that concentrates power in the original population centre of southern Ontario and Quebec. This has not, and does not, make for great national cohesion or political participation. Instead, it feeds constant fuel to separatist fires.

The current threat to Canadian identity comes as well from the ideological commitments of our federal government. Early in his time as Prime Minister, Justin Trudeau declared Canada to be a “post-national” state. This sort of moniker is consistent with the popularly-designated woke doctrine that eschews the liberal nation-state, democratic procedures and individual freedom in favour of tribalist narratives and identity politics.

The obsession with post-nation-state policies has initiated the dissolution of the Canadian nation regardless of whether Quebeckers or Albertans actually vote for separation. We are all becoming de facto separatists within a dissolving Canada, a drift that current Prime Minister Mark Carney’s ineffective “elbows up” attitude has done nothing to reverse.

Kenney’s panicked musings about Alberta separatists would have us believe the province need only continue the fight for a better deal within the Canadian federation. Kenney pursued just such a policy, and failed signally to deliver. For too many Albertans today, his advice does not reflect the political reality on the ground nor appreciate the worrying trends within Canadian institutions and among our political class.

Kenney likes to associate himself with Edmund Burke, the father of conservatism and defender of venerable institutions. But Burke was known as much in his day for his sympathies with the American revolutionaries and their creation of an experimental new republic as he was for his contempt towards the French Revolution and its Reign of Terror. Burke’s conservatism still linked real actions with true words. It would be advisable, perhaps, to keep our own political language here in Alberta within the bounds of the plausible rather than fly off into the fanciful.

The original, full-length version of this article was recently published in C2C Journal.

Collin May is a lawyer, adjunct lecturer in community health sciences with the Cumming School of Medicine at the University of Calgary, and the author of a number of articles and reviews on the psychology, social theory and philosophy of cancel culture.