By Peter Shawn Taylor
Why do governments exist? There must be a better reason than simply providing well-paid jobs for people who enjoy bossing others around.
Philosopher John Locke offered one of the clearest answers when he wrote in 1690 that the “great and chief end” of government is “the preservation of … property.”
And by this most basic standard, Canadian governments are failing badly. Nowhere is this failure more obvious than in Richmond, B.C. The recent Cowichan Tribes v. Canada case has shaken the very foundation of home ownership in Canada. The finding that aboriginal title can exist on the same piece of property as fee simple ownership, and that this native claim is a “senior and prior interest” has created property rights chaos.
Local homeowners have been warned they cannot sell, renovate, or alter their properties without Indigenous approval. A major commercial development collapsed as lenders fled the legal uncertainty. The case has even attracted international attention, with The Wall Street Journal recently asking, “Do Property Rights Still Exist in British Columbia?” No one has yet provided a convincing answer to this troubling question.
It’s not as if Canadian governments were following Locke’s prime directive before the latest court ruling. “Cowichan is not a break from the past,” said Queen’s University law professor Bruce Pardy in an interview. Rather, it is the latest evidence of a much bigger problem in Canada regarding the ongoing diminution of property rights.
Across the country, governments routinely treat private property as a tool for improving their own finances or to carry out political agendas. Eight provinces, for example, permit civil forfeiture, allowing the state to seize property without a criminal conviction. This vast power is open to abuse. In Quebec, recent changes to forfeiture law means any cash sum over $2,000 is automatically considered evidence of illegal activity unless proven otherwise.
Housing policy in Canada is almost entirely an exercise in depriving owners of their rights. Rent control removes the ability of landlords to charge market rates. “Renoviction” bylaws prohibit landlords from removing tenants in order to renovate apartments they own. Vacant homes taxes deliberately punish anyone who wants to own more than one home for whatever reason. Inclusionary zoning requirements force developers to build below-market apartments against their wishes.
“We are doubling down on a dumb idea: that restricting property rights is the best way to get more housing built,” said Pardy of Canadian housing policy. “As soon as you start interfering with those rights, you no longer have a real market.”
During the 2022 Freedom Convoy protests, the federal government froze bank accounts and financial assets of protesters and their family members. As University of New Brunswick law professor Paul Warchuk observed in a recent report for the Macdonald-Laurier Institute, this was “a complete deprivation of property based on suspicion alone.”
What makes all these policies and government actions possible is the fact Canada’s Charter of Rights and Freedoms is silent on property ownership as a fundamental right. Most other Western liberal countries have constitutions that protect both the right to own property and defend against its unjust seizure by government. Among OECD nations, only Canada and New Zealand lack this sort of explicit constitutional protection.
The reason for this omission is political. When Canada’s Charter was created in 1982, liberty and individual rights were not top-of-mind topics. Further, some provinces worried that the inclusion of property rights would interfere with their interventionist policies, such as the Saskatchewan NDP government’s plans for nationalizing the resource sector. As a result, property rights were not included in the final version of the Charter.
Section 33 of the Charter, now referred to as the Notwithstanding Clause, would have addressed these provincial concerns. But in a case of unfortunate timing, Section 33 was added after property rights had already been removed.
Placing property rights alongside all the other rights currently protected by the Charter – including freedom of speech, freedom of religion and freedom of assembly – could have a big impact on the lives of Canadians.
As University of Saskatchewan constitutional scholar Dwight Newman noted in an interview, a Charter that includes property rights would be “a very different thing” from our current version. Governments would likely have to go to greater lengths to justify policies that infringe on private ownership rights; judges would also be required to balance these competing rights more transparently.
While the process to amend Canada’s Constitution is complicated and time-consuming, adding property rights would rectify a long-standing problem and provide Canadians with much greater security for their property and possessions.
For decades, Canadians have thought their property was secure by default. Cowichan has shattered that illusion. If Canadians want to ensure what they own is truly theirs, now is the time to speak out.
Peter Shawn Taylor is senior features editor at C2C Journal, where the longer, original version of this article first appeared.
4 Responses
The entire matter is exacerbated by the current practice of every level of government, most major businesses and almost every charitable organisation..
That practice is to state on all of their press releases, on all of their email and advertising materials and even before public meetings, that they are operating with the permission of this or that “Indian Band” (or, as they would have it, “First Nation”) and that they are on land “unceded” to the Canadian Government.
In other words the First Nations are saying that my land still belongs to them and the message comes at us in every direction.
What sort of chance does a claim by a plaintiff have against such saturation of the issue.?
Not only that but the non-indigenous Canadian pays the bills for the respondent!
It’s so ridiculous, that my property tax statement has a qualifying paragraph reminding me that even the current civic government doesn’t actually have unfettered power over my land!
This is not something that local or state (read Provincial) government can do anything about ( try as they may to mollify us).
It needs an amendment to the Federal Constitution and we all know how difficult it’s going to be to get a change in that document..
There’s not a party or a politician with the balls to do it.
Meantimes businesses, exploration outfits and energy behemoths are running like “Buffalo Head Smashed In”, pulling up stakes because the stakes mean nothing.
Which means nobody wants to invest here any more.
How come a place like Malaysia, with a lower population than ours, is throbbing with economic action? It has two buildings amongst the tallest in the World!
We can start by making such “unceded land” statements illegal in public communications.
Then we have to rid the entire system of the judicial bias and focus in on just how damaging the current uncertainty is to the future health of Canada as a country.
It’s one hell of a mountain to climb
Canadians are not very intelligent. The Indian insanity would never be tolerated by a sane rational people. We have to put a stop to it.
You are right .
None of the parties have had the sense to make it an election issue in any of the past elections and so the Indian entitlements have been slipped through incrementally, mostly unnoticed. All of a sudden they exercise these entitlements and we’re surprised.
Now it’s like knotweed throughout the system and it can only be eliminated with severe measures. Democracy in its present form doesn’t allow for severe measures.
“aboriginal title can exist on the same piece of property as fee simple ownership”
That has always been the implication of recognition of aboriginal title. Leaving aside that even actual treaties and purchases have been called into question and readjudicated [like the Toronto Purchase], the idea that aboriginal title persisted alongside the Crown’s original arrogation, as normal, of all land to itself before parcelling it out in lots to settlers, much not covered by treaty, meant that two property concepts forever overlapped.
This was always going to happen.
It is a marvel to me that no Dominion government legislated it out of existence during the probably nearly a century after Confederation when no one could or would have done anything about it.