Courts and governments have caused this problem. The framers of Canada’s new constitution, adopted in 1982, excluded rights to private property. But at the last hour, they guaranteed existing Aboriginal rights and title. Over decades, the Supreme Court of Canada has expanded the scope of those rights. The recent decision about Richmond is a culmination of its work. That decision is under appeal, first to the B.C. Court of Appeal. After that, we may find out if the Supreme Court approves. But that could take years.
It’s not just the courts. In 2015, the Trudeau government agreed to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP says that Aboriginal groups have the right to own, use, develop and control any lands that they traditionally occupied or used. In 2019, the B.C. legislature incorporated UNDRIP into BC law. Known as DRIPA, the statute requires B.C. law to be consistent with UNDRIP. The NDP government has been granting Aboriginal title and control across the province accordingly.
What can be done? The Canadian constitution has an onerous amending formula. Repealing the section on Aboriginal rights would be next to impossible. So would adding private property guarantees to the Charter. But last week, Dwight Newman, professor of law at the University of Saskatchewan, suggested an alternative in the Post. Rather than attempt wholesale change, he proposed an amendment specific to British Columbia.
Section 43 is one of the ways to amend the Canadian constitution. It allows changes “in relation to any provision that applies to one or more, but not all, provinces.” The requirements are simple. The legislature in one province and the federal Parliament must both pass a resolution declaring the amendment. That’s it. Such a resolution, Newman suggests, could guarantee that private property in British Columbia has priority over Aboriginal title.
He might be right. Section 43 has been used, for example, to alter constitutional denominational school rights in Quebec and Newfoundland. In 1993, New Brunswick used Section 43 to add a provision to the Charter about linguistic rights in the province.
But Section 43 might be narrower than hoped. The New Brunswick amendment was not challenged in court at the time of its enactment. So, yes, Section 43 was used to change the Charter, but not with judicial benediction. Moreover, the Supreme Court has not considered the ways in which Section 43 can be used. Section 43 amendments so far have been minor, mere “tweaks” to the constitutional order. We do not know what meaning the Court might give to “any provision that applies to one province.” It could mean any new provision, but more likely it means any existing provision that applies only to the province. Which would rule out using Section 43 to protect property rights from Aboriginal title in B.C. If the Court allowed Section 43 to be used for that purpose, then Section 43 could theoretically be used for anything, including amending the Charter wholesale until each province had its own version.
Even if Section 43 could be used to fix the property mess, it requires both the province and Ottawa to act. In addition, B.C. legislation requires that such changes be first approved by referendum. The B.C. and federal governments have helped to cause the crisis and continue to do so. They seem intent on undermining the system of land tenure in their own society. They are not likely to disrupt the constitution to frustrate their own work.
Moreover, there are other, simpler places to begin. The federal government could reverse its support for UNDRIP. The B.C. legislature could repeal DRIPA. Neither sitting government will do that. Few political actors will step out of line on Aboriginal questions, even to defend the country’s land, economy, and people. Will we discover whether there is anything more Canadian, after all, than acquiescence? In Canada, truth and reconciliation has morphed into fiction and capitulation.
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