The essay series touches on constitutional reform, treaty negotiation, and a repeal
In a new essay series, a cohort of legal scholars and academics have proposed solutions to the recent property rights issue in British Columbia arising over Indigenous title.
Independent, non-partisan public policy think-tank the Fraser Institute released the series, which includes essays from University of Saskatchewan law professor Dwight Newman, Cassels Brock & Blackwell LLP’s Aboriginal law chair Thomas Isaac, Queen's University law professor Bruce Pardy, and Fraser Institute Senior Fellow Matthew Mitchell. The pitches come in the wake of court rulings, government legislation, and individual First Nations’ agreements with the federal government and/or the British Columbia government, which have muddled property rights in the province by prioritizing Aboriginal title over private property rights.
“Canada's prosperity rests, in part, on its tradition of protecting private property, but these rights have now been thrown into question and if the situation in B.C. isn't rectified, this crisis could easily extend to the rest of Canada,” said Tegan Hill, director of BC policy with the Fraser Institute and co-editor of Potential Solutions for BC's Property Rights Crisis, in a statement.
Newman’s essay recommended clarifying the relationship between Aboriginal title and private property rights through province-specific legislative reform under s.43 of the Constitution. In particular, Newman pitched a concentrated constitutional change via a special amending formula in the Constitution Act, 1982, which permits constitutional reform to one province and necessitates a resolution by the its legislature as well as federal parliament acknowledgment.
Meanwhile, Isaac suggested that the primary tool in negotiating the recognition of constitutionally protected Aboriginal rights be governments’ recommitment to clear, transparent, and principled treaties. These constitutionally protected agreements generate binding, enforceable obligations between the Crown and Aboriginal peoples.
Pardy called for the repeal of s.35 of the Constitution, which guarantees “the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada,” per the Fraser Institute’s media release. Pardy also recommended modifying the Charter of Rights and Freedoms and repealing statutes that result in the unequal treatment of Indigenous people and other Canadians.
In his piece, Mitchell emphasized private property’s importance and its link to economic well-being.
“In the face of this crisis that threatens the prosperity of all Canadians, the status quo is not an option. Policymakers need to make solving this crisis a priority, and Canadians need to understand the pros and cons of the different solutions,” Hill said.
