Lawyer Barry Kirkham is a King’s Counsel and a senior member of the bar in British Columbia. The Cowichan followed a decision of the Supreme Court of Canada in 1997, Delmaguukw, which held that in the absence of a treaty ceding their lands, any band is entitled to aboriginal title over any area to which they can prove their ancestors had exclusive possession in 1846. And the court decided that to assist bands in proving the fact of possession in 1846, the band could introduce 7th generation hearsay evidence, passed down through generations, as to what land was occupied in 1846. This reversed a common law prohibition against first hand hearsay evidence that applies in every other lawsuit that goes before the courts. .GIESBRECHT: The Cowichan Decision threatens not just private property — but Crown land, too.The trial judge in Cowichan reasoned that the 7th generation hearsay she relied to find aboriginal title in Richmond was reliable because the elders would pick berries with the children, which gave them the opportunity to pass on their history, such that 180 years later someone today could give evidence as to what land was occupied in 1846. I am not making this up.It did not have to be this way. The trial judge in Delgamuukw, Chief Justice Alan McEachern, found after a two year trial, that there was no such thing as aboriginal title, and even if there was, it had been extinguished. He held hearsay evidence was inadmissible. In my opinion, and I think most of the bar had the same opinion, McEachern was not only endowed with outstanding legal acumen, but great common sense and judgment. I have always considered him a superior judge to anyone else appointed to the SCC. .His judgement should have been upheld. But the increasingly woke SCC has spent the last 50 years making up new legal doctrines, all of which are designed to cause indigenous plaintiffs to succeed in whatever case they might bring. For example, I don't think anyone could possibly have predicted 7th generation hearsay would ever be admissible in any court of law. And the politicians who created the Constitution Act of 1982 constitutionalized aboriginal rights. No one had the slightest idea of what those rights were at the time. The result is that the decisions of the courts subsequent to 1982 can never be reversed by legislation. This is unique in the entire history of British constitutional law, which recognizes the sovereignty of Parliament. Before 1982 a crazy court decision could easily be reversed by a statute. Not any more — the notwithstanding clause has no application to aboriginal rights decisions of the courts. .MORGAN: Indigenous reserves must show responsibility .So here we are facing ruin because of a questionable legal decision and the unforeseen consequences of constitutionalizing aboriginal rights not even known to exist but later made up out of thin air by a woke court.The decision of the SCC is that aboriginal title continues to exist today in areas where no treaties were signed, which is the situation in most of the province. BC has a population of about 5 Million. About 100,000 (2%) are indigenous, and around 1% live on reserves. The courts are in the process of turning over a large portion of BC to this 2%. The assessed values of private properties in BC is close to $3 Trillion. If all Crown lands were included the number would be much higher, let's say $6 Trillion. That amounts to $60 Million per indigenous person. Of course they won't be able to prove aboriginal title over all of BC, even though that is what they claim, but if they got half, that would be $30,000,000 per man, woman and child. .Our governments would lose their sources of revenue. Indeed the homeowners in Richmond are claiming their assessed values have plummeted — and I for one would advise anyone interested in buying a house not to even think of buying one anywhere aboriginal title has been declared. The homeowners should certainly have their property taxes reduced. It is quite impossible that the government of BC would be able to compensate all the property owners in BC who lose their land to aboriginal title.Throughout the history of the world, migration has been a constant. That is true in North America, where some First Nations conquered others and took over their land. Nowhere else in the world can a tiny surviving group of original occupants claim legal title to lands that were taken over by incoming populations over 150 years ago. No where, that is, except Canada.Everywhere else the concept of extinguishment applies — whatever interests the original group held at the time the area was taken over by newcomers was extinguished.In the Cowichan case, neither the federal nor provincial governments even argued extinguishment. .RUBENSTEIN: Canada eagerly embraces a genocide double standard.Statutes of limitations exist everywhere to ensure that historic claims against land can never be made against current owners, especially those who purchased their properties in good faith at fair market value. Again the exception is Canada, where the SCC has ruled that statutes of limitations have no application to claims for aboriginal title — or almost any other claim made by First Nations.No other country that was "colonized" faces the prospect of a tiny number of natives recovering most of the wealth established by others simply because their distant relatives were there first. Think about this: the judge found that in 1846, about 1,000 Cowichan, who lived on Vancouver Island, had established a summer fishing village in what is now Richmond. By the 1860s the Cowichan had left the area and the land was taken over by the Crown, which started issuing fee simple titles for full market value. The fishing village that was lost to the Cowichan had almost no value. It could have been purchased for a few blankets.Even assuming that the Cowichan's land had been taken without compensation in the 1860s, what is the justice in awarding the 2,000 or so current day descendants the current value of the property, expropriated without compensation from owners who paid $1 Million, or more?.One issue in the trial was who the current day descendants are. That issue took up a lot of trial time. Why should they receive such a windfall? Evidence at trial indicated the value of the area found to be aboriginal territory was $100 Billion. How can it be called justice to seize a valuable property and turn it over free and clear to a handful of indigenous people who happen to be descendants of the 1,000 who established a fishing village in 1846? In what way can it be called justice when a tiny number of British Columbians receive the lands simply because of some minor event 180 years ago.It is not as if the indigenous were left destitute by our ancestors. They were granted the right to establish reserves on significant areas of the province. Further, they have been generously supported by our tax dollars ever since. They receive all the benefits of every other Canadian, plus enormous additional benefits. None of this is even considered by the courts in a case claiming aboriginal title. It is all take and no give. .HANNAFORD: Canada's Liberal government turns its back on Christianity.I see no justice whatsoever in awarding a large swath of the province to the 2%.And we are so neglectful of our own interests and so generous to the indigenous that we are funding their enormously expensive lawsuits to take our province away from us. Who could have ever imagined we could be so misguided as to our own self-interest.All we do is get on our knees and pray to the god of reconciliation. Even today, in the wake of the Cowichan decision, many Canadians are concerned not because of its injustice, but because it might hurt the big R. If things go the way of Cowichan, there is no need for reconciliation. First Nations will be fabulously wealthy at our expense. Will they then be offering reconciliation to us? Lawyer Barry Kirkham is a King’s Counsel and a senior member of the bar in British Columbia.
