Alan Aubut is a retired geologist, based in Nipigon.British Columbia sits at the sharpest edge of Canada’s unfinished land question. Much of the rest of the country moved, however imperfectly, through treaties that exchanged claims of title for reserves, annuities, harvesting rights, and later modern agreements. BC largely did not. Its historic treaties were limited mainly to the 14 Douglas Treaties on parts of Vancouver Island and Treaty 8 in the northeast. The result was a province with reserve lands but, in most places, without the wider territorial settlement that treaties elsewhere were meant to provide. Delay, uncertainty, and litigation followed, where a more orderly settlement might have been possible.The lack of treaties in BC was not simply an accident. Treaty-making did not continue after 1854, and the colonial government under Joseph Trutch moved away from James Douglas’s earlier approach. Historical summaries from federal and provincial sources acknowledge that BC was unwilling to recognize First Nations land rights in the broader way adopted elsewhere, while Trutch reduced reserve lands and denied Aboriginal Title. The consequence was that BC continued to create reserves while avoiding the larger question of territorial settlement.It also explains why reserves in BC cannot be taken as proof that the title was resolved. For most of the province, reserves were not created by treaty. The Indian Act defines a reserve as land vested in the Crown and set apart for the use and benefit of a band. In BC, the constitutional basis after Confederation was Article 13 of the Terms of Union, and the Supreme Court has described reserve creation there as a federal-provincial process requiring Crown intention and practical steps. Reserve creation and treaty settlement were separate matters. BC pursued the former while postponing the latter.I am a geologist, not a lawyer, and I do not live in British Columbia. That does not place these questions beyond my reach. It means I have had to approach them the way I approach any difficult subject: by asking questions, following the evidence, and trying to understand how the present situation came to be. One question in particular has stayed with me for years. Why does British Columbia, unlike so much of the rest of Canada, have so few treaties and so little to show for more than a century of delay in resolving that fact?.Section 35 of the Constitution Act, 1982 changed the legal terrain by recognizing and affirming existing Aboriginal and treaty rights, but it did not define them in operational terms. Much of the working law was then developed by the courts. Canadian common law allows judges to develop doctrine through precedent, and that is what occurred with fiduciary duty, honour of the Crown, and the duty to consult. Those phrases do not appear in section 35 itself. The Supreme Court developed them through cases such as Guerin, Sparrow, Haida, and Mikisew. In legal method, that is, common-law development. In political terms, it means that much of the machinery now governing land, consultation, and reconciliation was judicially constructed rather than clearly enacted by legislators.The present conflict in BC is where that unfinished history meets modern judge-made doctrine. In August 2025, the BC Supreme Court in Cowichan Tribes v. Canada recognized Aboriginal Title over about 732 acres in southeast Richmond. Richmond described the ruling as placing Aboriginal Title ahead of fee simple ownership, and legal summaries note that the court rejected the argument that Crown grants of fee simple had permanently displaced Aboriginal Title. Instead, the court treated Aboriginal Title and fee simple as capable of coexisting, though not without tension, and left reconciliation to be worked out where they conflict.That matters because fee simple has long been treated as the strongest ordinary private estate in land. BC’s Property Law Act says land remains an estate in fee simple in the owner, and the Land Title Act says an indefeasible title is conclusive evidence that the registered owner is entitled to an estate in fee simple, subject to listed exceptions. Fee simple is not imaginary, but neither is it absolute. It exists under statute, under the Crown grant, and under the possibility of expropriation or overriding constitutional limits. The Cowichan ruling tests whether an ordinary registered title can remain untouched when an Aboriginal Title claim succeeds over the same land.BC’s long failure to settle title has therefore become a conflict among multiple rights-holders, not simply between indigenous claimants and the Crown. Richmond appealed. Tsawwassen First Nation also appealed, arguing that the ruling affected land and fishing areas within its own treaty and traditional territory. Then, on February 20, 2026, Canada and Musqueam signed agreements intended to recognize Musqueam’s rights and title within Musqueam territory and deepen Musqueam’s role in fisheries and stewardship. Within days, Squamish and Tsawwassen objected that the materials appeared to overlap with their own territories or treaty lands. Once the title is recognized incrementally, bilaterally, and without comprehensive settlement of overlaps, an advance for one group is easily seen as a threat by another..Government delay has compounded this problem. Canada and BC have long acknowledged that treaties are the main instrument for achieving certainty, yet BC has reached very few of them relative to the scale of unresolved claims. Canada’s comprehensive claims policy since 1973 has aimed at certainty in ownership, use, and management of lands and resources. The made-in-BC treaty process began in 1992 for the same reason. Governments have known for decades what the problem was.This is also the setting in which equal citizenship becomes harder to describe in simple terms. Canada now operates with differentiated legal regimes. Reserve lands are held by the Crown for the use and benefit of bands rather than in ordinary fee simple by individual residents. Aboriginal and treaty rights are constitutionally protected in ways that ordinary property rights are not. Some modern treaty nations have moved beyond parts of the reserve framework into treaty settlement lands and self-government structures, while others remain under the Indian Act. Those differences are real and substantial, and they are increasingly difficult to reconcile with a single understanding of citizenship, property, and jurisdiction.That tension has been sharpened further in British Columbia by the province’s adoption of the Declaration on the Rights of Indigenous Peoples Act in 2019. The Legislature did not literally transfer law-making authority to the United Nations, but it did require the provincial government to take measures to align BC laws with the UN Declaration, and it authorized agreements involving joint statutory decision-making and, in some cases, indigenous consent before certain statutory powers are exercised. BC has therefore chosen to use an international declaration as a framework for provincial law and policy. That raises a serious question about democratic accountability and about how much authority a province should anchor in standards developed outside Canada’s own legislative process..The harder question is what fairness now requires. It cannot mean pretending the problem does not exist. It also cannot mean allowing governments or courts to proceed with one bilateral arrangement at a time while neighbouring First Nations, third-party owners, and municipalities are left to guess at the legal effect. A fair path forward would require an honest recognition that BC left title broadly unsettled, a comprehensive process for dealing with overlapping claims before recognition instruments are signed, statutory rules for the treatment of good-faith fee simple owners who acquired land under the ordinary land-title system, and movement away from indefinite reserve dependency toward clearer local accountability, whether through modern treaties, self-government arrangements, or other legislated structures that define ownership, jurisdiction, taxation, and services in plain terms. The objective should be certainty.Has Canada backed itself into a corner? To a degree, yes. Section 35 cannot be altered by ordinary legislation, and Parliament cannot broadly amend the Constitution on its own. At the same time, the courts have built doctrines around section 35 that governments now treat as operational law. There is therefore no simple legislative exit. That does not make a solution impossible, but it does mean the solution must be political, legislative, and negotiated. Comprehensive settlements, legislation clarifying the effect of title recognition on third-party interests, and a willingness to confront overlapping claims before they become crises would all be part of any serious response.The sovereignty issue should also be stated accurately. King Charles III is not Canada’s head of state as the sovereign of Great Britain. He is the King of Canada. Canada’s difficulty is not foreign rule. It is domestic constitutional coherence. A country can live with unresolved tensions for a long time, but not indefinitely if land ownership, jurisdiction, consultation, title, and competing indigenous claims remain unsettled in major regions.That is the central point. BC’s refusal to settle the title did not remove the issue. It deferred it. The courts later gave legal force to unresolved claims, but without creating a comprehensive settlement mechanism. The conflict is no longer abstract. It affects fee simple owners, municipalities, ports, resource projects, treaty nations, non-treaty nations, and overlapping claimants. A just path forward is still possible, but only if Canada stops treating reserve creation as though it settled title, stops relying on courts to finish what governments declined to do, and treats certainty in land and jurisdiction as a national necessity rather than an indefinitely postponed task.Alan Aubut is a retired geologist, based in Nipigon.
