Fraser Institute says B.C. court rulings on Aboriginal title are deterring investment

Property-rights uncertainty in British Columbia is threatening business investment and could extend the crisis across Canada if not resolved, according to an analysis by the Fraser Institute.

The institute identifies three sources of what it calls a crisis. In 2019, B.C. passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA), incorporating the UN Declaration on the Rights of Indigenous Peoples into provincial law. UNDRIP grants Indigenous peoples the right to use, own, develop and control lands and territories they traditionally occupied, and to give or withhold "free, prior and informed consent" to activities on such territories.

Last November, the B.C. Court of Appeal ruled that the province's reformed mineral claims regime violated DRIPA, triggering more than 20 similar lawsuits. A B.C. Supreme Court decision also granted "Aboriginal title" covering more than 800 acres in Richmond to the Cowichan First Nation, ruling that such title is "prior and senior" to other property interests, including private fee-simple title. That decision has thrown the rights of more than 150 property-owners into question. The courts recently awarded Aboriginal title over Nootka Island, and similar cases remain pending.

The B.C. and federal governments have also entered bilateral agreements recognizing Aboriginal title and granting management powers over various areas, including Haida Gwaii and parts of Metro Vancouver, which the institute says has sometimes happened without input from non-Indigenous residents affected.

The Fraser Institute argues that private property rights—the authority to exclusively possess, use or transfer an asset—are essential to economic prosperity. It says B.C. already faces sluggish business investment, weak private-sector job growth and stagnant living standards, that more businesses are closing in the province than opening, and that residents are leaving.

The institute has published a new essay series offering potential solutions, with University of Saskatchewan law professor Dwight Newman suggesting the use of existing constitutional mechanisms to clarify the relationship between Aboriginal title and other property interests.

The Fraser Institute is a think tank that advocates free-market policies, and the description of the situation as a crisis is its own. The rulings it describes were decided in favour of the parties that brought them: the Cowichan First Nation was the successful party in the Richmond title case, and British Columbia enacted DRIPA in 2019 as government policy. HighOnCity has not obtained comment from the province, the Cowichan First Nation, or others named in the institute's analysis.