The BC Conservatives campaigned on a firm pledge to protect property rights, tapping into a deep-seated public anxiety triggered by the landmark Cowichan Tribes v. Canada ruling. As the incoming government takes office following its historic majority victory, it must act on this commitment from day one. However, the true test of leadership for Premier-designate Lorne Doerkson will be balancing political rhetoric with constitutional reality.The incoming BC Conservative premier must not overstate what a provincial government can legally accomplish. While Victoria possesses concrete legislative mechanisms to stabilize the real estate market, the Canadian Constitution fundamentally binds provincial authority. Under our federal framework, provincial legislation cannot unilaterally override constitutionally protected rights.That is precisely why the BC government, alongside five other impacted parties — including the City of Richmond and the Port of Vancouver — has turned to the judiciary, filing applications to stay portions of the ruling. Yet with the BC Court of Appeal scheduling these stay arguments for early 2027, the incoming government cannot afford to sit idle while economic uncertainty undermines provincial prosperity.The new cabinet must confront a hard legal reality: changing or repealing BC’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) will not solve this dilemma. Enacted in 2019, DRIPA mandates the government to align provincial laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).But the BC Supreme Court’s August 7, 2025, decision rested fundamentally on section 35 of the Constitution Act, 1982, and established jurisprudence surrounding Aboriginal title. It did not stem from DRIPA. Long before this case concluded, prominent legal scholars such as Kent McNeil and John Borrows anticipated provincial Crown grants issued after 1871 could face serious constitutional scrutiny if they infringed upon unextinguished Aboriginal titles. Altering DRIPA cannot undo a federal constitutional mandate..This issue strikes at the very core of national property and Aboriginal law, making provincial appeals merely a stepping stone. Divergent rulings across Canada — such as a New Brunswick court holding that Aboriginal title cannot be declared over private land — guarantee that the Supreme Court of Canada may one day rule on this matter to establish a final, definitive nationwide precedent.If political leaders genuinely wish to alter the underlying constitutional reality of section 35, they must face the gruelling constitutional amendment path. Under Canada’s general amending formula, structural changes require the consent of the federal Parliament and at least seven provinces representing 50% of the national population. Furthermore, section 35.1 explicitly requires the prime minister to convene a formal constitutional conference involving provincial first ministers and invited Aboriginal representatives before any such amendment is made.Drafters must design any proposed amendment to make it absolutely clear that it strictly confines itself to safeguarding private property rights, completely insulated from touching or eroding any other fundamental aspects of Aboriginal rights and title.To build immediate confidence, the new government should adopt the basic elements of its proposed property rights approach, specifically a Property Rights Defence Act and a robust framework for title transparency. By legally mandating the BC government to defend existing fee-simple title holders and establishing a transparent registry of overlapping historical claims, these mechanisms provide a valid first step. They establish a clear provincial guarantee for property rights within local jurisdiction, providing vital interim security for homeowners and lenders.Rather than a blanket indemnity policy, the previous NDP government established a fund of more than $150 million to support loan guarantees and other temporary measures to address immediate real estate financing panics. That was not enough then, and it certainly is not enough now..In the meantime, the new government must go much further to satisfy the markets. Premier-designate Doerkson must provide a government-backed compensation or indemnification mechanism to protect contested titles, giving investors and lenders the concrete assurance they require.BC must immediately engage with Ottawa and First Nations to establish an explicit, standardized policy framework for instances where Aboriginal title overlaps with existing homes, farms, and businesses. This framework should clearly state that proving infringement of title always means compensation and never dispossession.Mayors and city councils also require clear guidelines to maintain essential public services and ensure civic infrastructure remains legally uncompromised while the parties resolve broader title questions.The incoming government has arrived at a defining moment. Lasting stability requires starting with a fundamental, balanced principle: recognizing historical wrongs and fulfilling constitutional obligations while safeguarding the legal predictability of our modern economy.Ultimately, the hard limits on reversing course on all this may show Canada needs a full conversation about how we ensure Aboriginal rights do not undermine our economy. Reasonable people should realize now that Aboriginal reconciliation does not mean that, and if it does, it is contrary to bringing anyone together.Joseph Quesnel is a policy commentator based in Nova Scotia.
