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