GIESBRECHT: The Cowichan Decision threatens not just private property — but Crown land, too

In the astounding Cowichan Decision a judge has chosen to believe the same people who permitted the illegal building of what is probably the worst toxic garbage dump in Canada. The same people who allowed that ecological calamity to occur repeatedly claimed to be “stewards of the earth” and “guardians of the land”. Both things can’t be true at the same time, yet the trial judge found the Cowichan claimants to be credible, while rejecting the evidence of two other First Nations with better reputations.The case is being appealed, but at least one of the property owners, Montrose Properties, is refusing to endure the years of costly uncertainty that an appeal will entail..GIESBRECHT: Richmond mayor warns property owners that the Cowichan case puts their titles at risk.Montrose Properties is the biggest of the Richmond property owners that were gobsmacked to awake one morning to discover that the property that they had bought and paid for might now belong to a Vancouver Island Indian band. It is asking to reopen the Cowichan Tribes case. It seems likely that this application will be joined by other affected property owners who discovered that their titles might have been made worthless by a court ruling based on something that might or might not have happened 185 years ago. It is not known at this time if their application to reopen the case will be successful…What is universally recognized by any reasonable person is that it is astounding that the first notice these owners had of this impending catastrophe was by reading about it in a newspaper..Senior lawyers, like Dwight Newman, Tom Isaac, Barry Kirkham and Peter Best have been candidly warning Canadians that private property rights in BC and other parts of Canada are clearly now under the very real threat of an aboriginal title claim. If the Cowichan decision stands, a property owner who did all their due diligence when they purchased their property could suddenly find themselves confronted by a court decision — based on ancient hearsay evidence not searchable in any written document or registry — that their fee simple title has become “junior” to a constitutionally protected “senior” aboriginal title — something that could not possibly have been foreseen when the property was lawfully purchased. And despite how hard CBC, or other apologists for what even indigenous leaders call the “Indian Industry” try to convince Canadians that the current aboriginal title crisis is just “craziness” and misinformation, this is an existential threat to property owners — a threat that is not confined to Richmond, but to all parts of BC, and spreading to other parts of Canada as well..GIESBRECHT: No digging necessary at Kamloops Residential School .Conrad Black, while noting that the worries about aboriginal title taking over the entire country are overblown, summed up the Cowichan decision as follows:“This was a specious and incomplete verdict that created confusion and, with the airy unworldliness often encountered on the Canadian bench, substituted platitudes about reconciliation for practical resolution of the problem. The chief takeaway is that we need better judges—ones who are less intoxicated by the absurdly magnified powers inadvertently conferred upon them by the Charter of Rights.”So, the concern about private land is very real. Leading experts are very clear that the current situation is untenable, and must be addressed. Newman has recently suggested that a limited constitutional amendment is the answer. Others have suggested everything from an immediate reference to the Supreme Court of Canada, to the complete abolition of Section 35 of the Constitution..Senior Ontario lawyer, Peter Best, explains in detail how our courts have promoted the worst of indigenous radicalism, and brought us to this low point in our history, where private property rights are being undermined by a crusading judiciary.But meanwhile, in the very legitimate rush to address the private property threat, Canadians might be losing sight of the fact that exactly the same existential threat that exists to private land from aboriginal title claims threatens Crown land as well. Considering the fact that Crown land comprises 95% of BC, and 89% of Canada this is an enormous threat. Successful aboriginal title cases have the potential to exclude non-indigenous Canadians from provincial, federal and municipal parks, as well as to see resource development halted, or subjected to extortionate indigenous taxes - and generally to see the Canada we know radically changed by the decisions of individual judges, basing their decisions on their best guesses of what they think might have happened hundreds of years ago. Because aboriginal title is considered by the court to be a “prior and senior” right, successful aboriginal title claims would change the country in profound ways..GIESBRECHT: 'Land Back' at Bloodvein.We have already seen provincial parks in BC temporarily closed to non-indigenous people. These closures appear to be increasing in duration each year. It is hard to believe that there is not some secret agreement between the Indian bands and the provincial government to keep increasing the length of the closures until the closures are permanent, and only indigenous people can access the area. In short, this looks like grooming behaviour — the public is being groomed to accept the permanent loss of some of the parks.And the park and Crown land closures are not confined to BC. In Manitoba, the Bloodvein Indian Band has placed what appears to be a permanent barricade on a government road, illegally keeping non-indigenous hunters with valid hunting licences off of the Crown land surrounding their reserve. The provincial government has done nothing to end this illegal blockade.Aboriginal title cases are even now being processed in New Brunswick and other parts of Canada. More than 50% of New Brunswick is being claimed by one Indian band. .The Cowichan decision will undoubtedly inspire more claims. The monetary awards are just too great. Billions of dollars can be made at the stroke of one judge’s pen. The massive new case in Quebec is an example. And residents of western Canada, which is within the numbered treaty areas, should not assume that they are safe from aboriginal title claims. Already, we are hearing from western Indian chiefs who clearly want to get in on the lucrative aboriginal title claims now playing out in BC. Manitoba Grand Chief Derek Nepinak reportedly said recently that “The treaties are not worth the paper they are written on."Clearly, skilled lawyers are already planning aboriginal title cases throughout the country that will be based on the Cowichan decision. So called “modern treaties” incorporating aboriginal title concepts, are being proposed. Even the Métis are getting on the aboriginal title bandwagon..MacKINNON: Understanding Cowichan Tribes v. Canada .So, given the profound changes that aboriginal title claims are causing, Canadians who voted for all of these deeply unsettling changes must regret their decision to vote for them.But wait a minute! I don’t quite recall voting for any of this!That’s because there has been no public discussion — much less a vote — about any of these nation-changing developments. These enormous changes have all been taking place behind closed doors. The property owners in Richmond were shocked to wake up one morning only to find out for the first time that their house might not belong to them. It is an absolute scandal that they weren’t officially notified about this threat when the Cowichan’s first made their claim. Unless the Supreme Court of Canada reverses course, that will be the fate of other homeowners elsewhere in Canada.But it is equally scandalous that Canadians might wake up one morning to discover that their public parks are now off limits to them, simply because they weren’t born to indigenous parents. Or that they might have to pay tolls to Indian bands to drive from one part of their province to the next. Or — under the increasingly rubric of “reconciliation” — their potato farm or other business might become the property of some Indian band they might never even have heard of. Or even worse — that First Nations, playing by their own “rules” will allow toxic garbage dumps to be created on their newly acquired properties..As Aristotle Foundation’s guru, Caroline Elliott, has recently written, closing BC’s parks is only one disturbing sign of things to come, unless Canadians wake up and push back. Meanwhile, the Cowichan judge, Eby, and the federal government engage in a clever game of buck passing in order to shuffle the public relations problem off on someone else. The judge gives the parties 18 months to “negotiate” — which basically puts a gun to the heads of the defendants and the taxpayers, who will have to come up with whatever billion dollar “settlement” the Cowichans demand, while the province and federal government appeal, but instruct their lawyers not to advance the only argument that will end extortionate claims like this, once and for all — namely extinguishment. Eby’s main complaint seems to be an unhappiness with the trial judge for somehow misleading him by pronouncing on private land as well as public land. He said:“The ... court assured us that they would make a decision that didn’t affect landowners in the claim area so they didn’t have to be served, they didn’t have to be told about the case, that it was going ahead in court,” Eby said November 3. “Unfortunately, that obviously turned out not to be the case.”.EXCLUSIVE: Mortgage brokers sound alarm over Cowichan Decision's impact on landowners.The fact that billions of dollars will have to be paid to the Cowichan for public lands — or that valuable public land and infrastructure might actually have to be transferred to an Indian band that is incapable of even running their home reserves on Vancouver Island — doesn’t seem to concern him. His only concern appears to be the backlash his government is receiving from private owners. What about the prospect of forcing taxpayers to pay this Indian band, and the approximately 200 others who have already launched similar claims, or are sure to do so after this Cowichan bonanza the trillions of dollars that neither the province or the federal government has?A more cynical interpretation of Eby’s newfound concern for the homeowners is that he will focus on their plight to take away from the very real aboriginal title threat to the 95% of BC that is Crown land. The Eby government’s policy of making agreements in secrecy with Indian bands makes this cynical interpretation quite plausible..As for Prime Minister Carney, he has not made a single comment about perhaps the most important Canadian news story in years — both private and public property rights could be fundamentally, and permanently changed forever, and the Prime Minister remains mum. Astounding!Another cynical interpretation for the complete lack of concern for public and private property rights shown by both Eby and Carney is the boiling frog explanation. The water the frog sits in is heated slowly, the frog becomes accustomed to the rising temperature and doesn’t realize until too late that he’s done for. Perhaps Eby and Carney want Canadians to slowly become accustomed to a Canada that is Canada no more — where property rights become arbitrary and what was a unified country becomes that “patchwork of tiny Bantustans” that a visionary prophesied years ago. We are the frog in that cynical explanation..WATCH: Eby calls on landowners to provide evidence Cowichan Decision impacting ability to renew mortgages.Meanwhile, the only party advancing the extinguishment claim, namely the City of Richmond, is unlikely to win because the senior provincial and federal government lawyers have one hand tied behind their backs with their “reconciliation” practice directives that side with indigenous claimants and prevent the lawyers from properly defending property owners. The pursuit of justice is replaced by an obsession with “reconciliation”. Is “extinguishment” a reasonable argument? Of course it is. It is exactly the conclusion that Chief Justice Alan McEachern came to when he decided what was then the longest trial in BC’s history — the Delgamuukw case. It is also the only conclusion that makes sense. Of course British Columbia had the authority to issue titles when it began doing so. British North America is a historical fact. .But none of the defendants appear to be making the most important argument of all - namely that trial courts should not be allowed to rely on seventh hand hearsay evidence to establish aboriginal title. McEachern answered this question with a definitive “Of course they shouldn’t”.Canada’s Supreme Court must reverse itself, and move closer to McEachern’s eminently sensible decision, and end this deeply destabilizing period of title uncertainty. And this process must be initiated now, by an immediate reference to the SCC. Not by an appeal process that will take five to ten years..WATCH: Richmond mayor says city not to blame as landowners decry lack of warning over Cowichan title case.Here is noted author and historian, John Robson’s blunt assessment of the Supreme Court’s misguided attempt to rewrite history by pretending that indigenous “oral history” is reliable evidence that can be used to strip title from lawful owners, hundreds of years after those titles were first issued:“It’s nonsense. And despite modern court practice, nonsense can’t be sound jurisprudence. Award compensation for past injury, sure. Be just in our own time. But don’t burn our Constitution in a sacred fire.”What is happening in Canada today in the name of “reconciliation” is resulting in its exact opposite. It is not hyperbole to say that unless this title uncertainty madness is stopped, it will tear this country apart. Our Supreme Court, and our political leaders, must do a radical rethink of “aboriginal title” and “reconciliation” before property owners take it upon themselves to solve the problem. Simply put, Canadians will not abide having their homes and public lands taken from them.