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Fraser Institute

Legal rights should not depend on lineage—Indigenous or otherwise

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7 minute read

From the Fraser Institute

By Bruce Pardy

Once upon a time, legal rights depended on who your parents were. The ruler was the son of the ruler before him. If your parents were serfs, you were a serf, too. Lineage was destiny.

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, B.C. But that’s not all. Wherever Aboriginal title is found to exist, said the court, it is a “prior and senior right” to fee simple title, whether public or private. That means it trumps the property you have in your house, farm or factory.

If the Cowichan decision holds up on appeal, it would mean private property is not secure anywhere a claim for Aboriginal title is made in Canada including B.C. and New Brunswick. In November, a judge of the New Brunswick King’s Bench suggested that where such a claim succeeds, the court may instruct the government to expropriate the private property and hand it over to the Aboriginal group. Don’t dismiss these decisions as isolated or not having national implications. They are the logical extension of the Supreme Court of Canada’s extensive Aboriginal law jurisprudence.

They are also consistent with core Canadian beliefs. Special status for Aboriginal people is deeply ingrained in Canadian culture and enshrined in the Constitution. Aboriginal rights are widely regarded as the natural and proper order of things. But in fact, they are the opposite. In a free country governed by the rule of law, Aboriginal rights should not exist.

Invasion, migration and mixing is the history of humanity. The Romans invaded the British Isles in 55 B.C. and conquered the place about 100 years later, on their second try. By 500 A.D., Saxons had established themselves as the dominant power. In 1066, the Normans overthrew the Saxon kingdom. Today, British law does not have different rights for descendants of Romans, Saxons and Normans. The people are British.

It wouldn’t have seemed that way in 1066. When aliens force their way into a territory, the inhabitants understandably resist. They try to preserve the memory that the place belongs to them. But over centuries, things change. People mix, culturally and genetically. Descendants of inhabitants and invaders marry and procreate. Their offspring do the same. More people from other different places arrive and mix, too. Everyone born there is native to the place. The culture is neither what existed before the invasion nor what the invaders brought with them. No one alive remembers either. The culture in which they live is a distinctive derivative.

Once upon a time, legal rights depended on who your parents were. The ruler was the son of the ruler before him. If your parents were serfs, you were a serf, too. Lineage was destiny. But like the culture, the law evolved. Eventually, everyone got the vote and the right to run for office. Everyone could own property and was free to buy and sell it. Everyone could marry who they chose, and divorce as they saw fit.

But in Canada, this old idea has been reconstituted as a progressive imperative. Under section 35 of the Canadian Constitution, the legally privileged group is Aboriginal, not European. Indigenous people have the same legal rights as any other Canadian citizen. But they also have rights no one else may claim. Depending on their lineage and group affiliations, they may have treaty rights. They may be entitled to tax exemptions. They may receive exclusive benefits. They may claim positions on governing bodies and in institutions reserved only for them. They may be entitled to procedures and considerations in criminal sentencing that no one else receives. Their group may be granted Aboriginal title on land from which other Canadians are excluded.

This special status has not benefited most Aboriginal people. But it has enriched their elites who administer the substantial largesse that flows from government coffers. Aboriginal property is a group right controlled by Aboriginal leaders. Individual Indigenous people do not own plots of land on reserves or on lands subject to Aboriginal title.

Dependency endures because governments and many Indigenous leaders want it that way. Former Mount Royal University professor Frances Widdowson, among others, has argued that we can trace persistently poor social conditions experienced by many Indigenous people to a thriving “Aboriginal industry.” Indigenous and non-Indigenous institutions and individuals—chiefs, leaders, consultants, managers, bureaucrats, politicians, lawyers and others—have a vested interest in the existing system of Aboriginal rights and status as special groups. Section 35, as interpreted by the Supreme Court of Canada, constitutionally entrenches this system. The recent Cowichan decision is just one of its consequences.

Let’s say the truth out loud. The British and the French conquered the territory now known as Canada. They weren’t invited, and they couldn’t have been persuaded to leave. They came with numbers and technology that overwhelmed the cultures that were there at the time, many of which were engaged in violent conflicts with their neighbours. Many people on the continent were not the first inhabitants of their territories. Treaties made with the Crown made the best of a bad situation. Lands not surrendered by treaty were no less subsumed by the new people, culture and country.

Most importantly, none of this matters now. Generations have passed. We are all Canadian citizens mixed together. Some people have Aboriginal lineage, some have British or French, some have both, and many have none of the above. It’s time to reject the idea that legal rights depend on lineage. In a free country, laws apply not to distinctive peoples, but to people.

Bruce Pardy

Professor of Law, Queen’s University

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Energy

Expanding Canadian energy production could help lower global emissions

Published on

From the Fraser Institute

By Annika Segelhorst and Elmira Aliakbari

Canada’s most timely opportunity to lower overall global emissions is through expanded exports to regions that rely on higher-emitting fuel sources.

The COP30 climate conference in Brazil is winding down, after more than a week of discussions about environmental policy and climate change. Domestic oil and natural gas production is frequently seen as a fundamental obstacle to Canada’s climate goals. Yet the data shows that Canadian energy production is already among the world’s cleanest, generating lower greenhouse gas (GHG) emissions per barrel-of-oil-equivalent produced, among major producing countries. Expanding the role of Canadian oil and gas in global markets can replace higher GHG-emitting alternatives around the world, driving down global GHG emissions.

Prime Minister Carney’s first budget highlights Canada’s “emissions advantage” in a chart on page 105 that compares the amount of GHG emissions released from producing oil and natural gas across 20 major producing countries. Compared to many other top-producing countries, Canada releases fewer GHG emissions per barrel of oil and gas produced when considering all phases of production (extraction, processing, transport, venting and flaring).

For oil production, Canada has an advantage over most major producers such as Venezuela, Libya, Iran, Algeria, Nigeria, China, Russia and Qatar. Canada’s emissions per barrel of oil produced are below the global average, making Canada among the lower emitting producers worldwide.

Similarly, Canada’s natural gas production has an emissions per barrel equivalent that is lower than the global average and is below major producers such as Turkmenistan, Uzbekistan, Nigeria, Indonesia, China, Argentina, Malaysia, Australia, Algeria, Iran, Russia, India and the United States. The chart below reveals countrywide average GHG emissions per barrel of oil or natural gas produced in 2022.

chart

Source: International Energy Agency (2023), The Oil and Gas Industry in Net Zero Transitions 2023, IEA, Paris, p. 69 

Canada’s emissions advantage stems from years of technological innovations that require less energy to produce each barrel of oil along with improvements in detecting leaks. From 1990 to 2023, Canada’s total production of crude oil rose by 199 per cent, while emissions per barrel of oil produced declined by 8 per cent, according to Environment and Climate Change Canada (ECCC). In the oilsands, since 1990 emissions per barrel have fallen by nearly 40 per cent while emissions from natural gas production and processing have decreased by 23 per cent.

Canada has already implemented many of the most practical and straightforward methods for reducing carbon emissions during oil and gas production, like mitigation of methane emissions. These low-hanging fruits, the easiest and most cost-effective ways to reduce emissions, have already been implemented. The remaining strategies to reduce GHG emissions for Canadian oil and gas production will be increasingly expensive and will take longer to implement. One such approach is carbon capture, utilization, and storage (CCUS), a technology which traps and stores carbon dioxide to prevent it from reaching the atmosphere. Major infrastructure projects like this offer potential but will be difficult, costly and resource intensive to implement.

Rather than focusing on increasingly expensive emission reductions at home, Canada’s most timely opportunity to lower overall global emissions is through expanded exports to regions that rely on higher-emitting fuel sources. Under a scenario of expanded Canadian production, countries that presently rely on oil and gas from higher-emitting producers can instead source energy from Canada, resulting in a net reduction in global emissions. Conversely, if Canada were to stagnate or even retreat from the world market for oil and gas, higher-emitting producers would increase exports to accommodate the gap, leading to higher overall emissions.

As Canada’s climate and energy policy continues to evolve, our attention should focus on global impact rather than solely on domestic emissions reductions. The highest environmental impact will come from enabling global consumption to shift towards lower-emitting Canadian sources.

Annika Segelhorst

Junior Economist

Elmira Aliakbari

Director, Natural Resource Studies, Fraser Institute
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Business

Canada is failing dismally at our climate goals. We’re also ruining our economy.

Published on

From the Fraser Institute

By Annika Segelhorst and Elmira Aliakbari

Short-term climate pledges simply chase deadlines, not results

The annual meeting of the United Nations Conference of the Parties, or COP, which is dedicated to implementing international action on climate change, is now underway in Brazil. Like other signatories to the Paris Agreement, Canada is required to provide a progress update on our pledge to reduce greenhouse gas (GHG) emissions by 40 to 45 per cent below 2005 levels by 2030. After decades of massive government spending and heavy-handed regulations aimed at decarbonizing our economy, we’re far from achieving that goal. It’s time for Canada to move past arbitrary short-term goals and deadlines, and instead focus on more effective ways to support climate objectives.

Since signing the Paris Agreement in 2015, the federal government has introduced dozens of measures intended to reduce Canada’s carbon emissions, including more than $150 billion in “green economy” spending, the national carbon tax, the arbitrary cap on emissions imposed exclusively on the oil and gas sector, stronger energy efficiency requirements for buildings and automobiles, electric vehicle mandates, and stricter methane regulations for the oil and gas industry.

Recent estimates show that achieving the federal government’s target will impose significant costs on Canadians, including 164,000 job losses and a reduction in economic output of 6.2 per cent by 2030 (compared to a scenario where we don’t have these measures in place). For Canadian workers, this means losing $6,700 (each, on average) annually by 2030.

Yet even with all these costly measures, Canada will only achieve 57 per cent of its goal for emissions reductions. Several studies have already confirmed that Canada, despite massive green spending and heavy-handed regulations to decarbonize the economy over the past decade, remains off track to meet its 2030 emission reduction target.

And even if Canada somehow met its costly and stringent emission reduction target, the impact on the Earth’s climate would be minimal. Canada accounts for less than 2 per cent of global emissions, and that share is projected to fall as developing countries consume increasing quantities of energy to support rising living standards. In 2025, according to the International Energy Agency (IEA), emerging and developing economies are driving 80 per cent of the growth in global energy demand. Further, IEA projects that fossil fuels will remain foundational to the global energy mix for decades, especially in developing economies. This means that even if Canada were to aggressively pursue short-term emission reductions and all the economic costs it would imposes on Canadians, the overall climate results would be negligible.

Rather than focusing on arbitrary deadline-contingent pledges to reduce Canadian emissions, we should shift our focus to think about how we can lower global GHG emissions. A recent study showed that doubling Canada’s production of liquefied natural gas and exporting to Asia to displace an equivalent amount of coal could lower global GHG emissions by about 1.7 per cent or about 630 million tonnes of GHG emissions. For reference, that’s the equivalent to nearly 90 per cent of Canada’s annual GHG emissions. This type of approach reflects Canada’s existing strength as an energy producer and would address the fastest-growing sources of emissions, namely developing countries.

As the 2030 deadline grows closer, even top climate advocates are starting to emphasize a more pragmatic approach to climate action. In a recent memo, Bill Gates warned that unfounded climate pessimism “is causing much of the climate community to focus too much on near-term emissions goals, and it’s diverting resources from the most effective things we should be doing to improve life in a warming world.” Even within the federal ministry of Environment and Climate Change, the tone is shifting. Despite the 2030 emissions goal having been a hallmark of Canadian climate policy in recent years, in a recent interview, Minister Julie Dabrusin declined to affirm that the 2030 targets remain feasible.

Instead of scrambling to satisfy short-term national emissions limits, governments in Canada should prioritize strategies that will reduce global emissions where they’re growing the fastest.

Annika Segelhorst

Junior Economist

Elmira Aliakbari

Elmira Aliakbari

Director, Natural Resource Studies, Fraser Institute
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