Conrad Black: B.C. Aboriginal title case underlines what's wrong with reconciliation

 

Property rights are under threat

The decision earlier this month by the Supreme Court of British Columbia that the Cowichan tribes hold title over federal, city, and private land in Richmond B.C. that enjoys a higher legal status than the fee simple ownership of the current proprietors is outrageous but may have some positive consequences. The decades and $7 billion that have been spent or pledged for what is called the “reconciliation” process, has finally hit a stone wall. The almost universal desire to be fair to Indigenous people and where appropriate to compensate them for inequitable treatment, has finally collided with the entrenched economic rights and interests of every owner of real property in Canada, including those of Indigenous ancestry.

 

Inexplicable latitude has been granted to the thickening population of crusaders for indigenous rights. Even the NDP government of British Columbia, which has been pathologically addicted to prostrating itself at the feet of anyone or anything purporting to champion any definition of the Indigenous interest, was reduced to monosyllabic waffling by the court decision brought down by Justice Barbara Young. Premier David Eby’s office declared an ambition to continue seeking a negotiated resolution of the conflict between Aboriginal rights and common law rights of affected property owners, (including the municipal, provincial, and federal governments-of $100 billion of property in Richmond B.C. that is directly affected by the decision).

This is an understandable ambition, but in the circumstances, his government might have pressed the negotiations over the six years that this case has been litigated. Our judiciary has been addicted to truckling to almost any Indigenous claim, on the restricted occasions when the federal and provincial governments have even had the temerity to conduct a defense against them. Now the taxpayers’ negotiating position has been tanked by this ludicrous decision, which is being appealed.

 

If courts with authority for the whole country were to come to similar judgments, and we cannot doubt that activists will continue to push on an open door and quite rightly take all they can get, then every property title deed in the country is compromised, including the Houses of Parliament. There were only approximately 200,000 native people in all of what is now Canada when the French and British explorers and settlers came here starting at the end of the 15th century. Yet the implication of this ruling is that they legitimately owned all of Canada and that in the patchwork of numbered treaties and other agreements following absorption of the politically organized parts of Canada into the British Empire at the end of the Seven Years War in 1763, ancient and undocumented Aboriginal rights took precedence over any subsequent real estate law allocations of property rights under the common or civil law systems that gradually spread across Canada.

 

It is somewhat similar to the public policy debacle created by the incompatibility between the claims of climate change alarmists that unless we abolish fossil fuel use, especially petroleum variants, we will all perish within an astonishingly short time by a vertiginous rise in global temperatures; with the fact that practically nobody is prepared to bear the cost in increased energy expenses in any serious pursuit of such a goal. Everybody is in favour of a prudent environment policy; everyone dislikes pollution, but the cost of the draconian changes advocated by radical green fanatics like our new prime minister and his wife are completely unacceptable to the great majority of people. They are also completely unjustified by any probative evidence. Climate is changing but not outside normal cycles and we have no assured idea of the extent to which, world temperatures are affected by human conduct.

 

In the case of reparations to Indigenous people, as with pursuing a counsel of perfection in environmental matters, claims of purists now vastly exceed what is tolerably affordable or remotely justifiable. What is commonly called reconciliation, meaning doing the necessary to conciliate the natives and make amends for past mistreatment, has become temporarily impossible by allowing militants, who psychologically kidnapped the former prime minister Justin Trudeau, to get away with scurrilous blood libels of the European settlers of this country, accusing them of cultural genocide, an offence which does not exist and in fact means assimilation, which was not in fact pursued, and even of attempted racial genocide. The increasing recognition of the rank falsehood that hundreds of native children died in residential schools, probably as a result of negligence or even outright homicide, and were surreptitiously buried and left unaccounted for, has taken some of the wind out of the sails of the militants. Parks Canada has just discreetly omitted the reference to “cultural genocide” in a historical site designation of a residential school. The tide is finally turning.

 

The contest between Aboriginal and common and civil law property rights was severely aggravated by the inability of Prime Minister Pierre Trudeau to gain from the NDP, then led by the amiable Ed Broadbent, agreement to include property rights within the Charter of Rights and Freedoms of Canada with the patriation of the amendment of Canada’s Constitution in 1982. In the Cowichan case, the native complainants did not ask the revocation of common law rights of fee simple ownership, only the recognition of the legal superiority of Aboriginal rights, which they have at least temporarily achieved.

 

This process isn’t reconciliation. It is collective national self-abasement accompanied by hurling money at plaintiffs like mad abstract artists throwing paint at canvases. Justice Young’s decision is a legal Swiss cheese. Of course, there is a legal eminent domain establishing the rights of property owners, including native persons. Some framework for dealing with these cases has to be legislated and enforced and it must be equitable to the natives but practical for the country. In this, as in lowering the Canadian flag on the masts of all federal buildings including embassies abroad for six months over a shameful disposal of the corpses of hundreds of native children that has not been proven to have happened, we are simply making a collective common law, civil law, and natural law ass of ourselves as a country. We desperately need some sensible government, not reflexive bigoted socialistic authoritarianism, just leadership.