Last August, the British Columbia Supreme Court determined Aboriginal title exists for the Cowichan Tribe in Richmond, a suburb of Vancouver. The Court held that Aboriginal title in Canadian law is “senior and prior” to a fee simple property interest, the most common form of private property right in Canada. That was the now-infamous Cowichan decision.

This obviously raises a fundamental question: does this ruling mean that where they can convince a court of the existence of Aboriginal title over your private property title, those First Nations who do so can then, after another court application, simply assume ownership of your property? That issue remains unclear after this judgment.

In response to the ruling, all parties to that litigation have plans to appeal the decision. But both the federal and B.C. governments effectively tied their own legal hands behind their backs in 2018. They did so by establishing litigation guidelines that prohibit government lawyers from arguing that fee simple interests effectively extinguish Aboriginal title claims (which would have the effect of “going to the wall” in protecting private property, as B.C.’s Premier David Eby has claimed he intends to do).

Specifically, the federal litigation guidelines require “counsel to recognize Aboriginal rights, including Aboriginal title… The effect of recognition will often be avoiding or substantially narrowing litigation. Where Aboriginal title and rights are proposed to be denied, counsel must seek direction on the proposed position from the Assistant Deputy Attorney General.”

If that was not enough of a political hand on the judicial scale, the federal guidelines continued in this way: “In addition to recognizing rights, counsel must ensure that their submissions and positions do not have the direct or collateral effect of undermining or restraining those rights, including Indigenous peoples’ right to self-determination.”

Moreover, these 2018 guidelines were also clear that they were meant to “discourage certain long-standing federal positions, including relying on defences such as extinguishment, surrender, and abandonment [of land] … Reconciliation is generally inhibited by pleading these defences.”

In other words, Ottawa is crippling the ability of its own lawyers to present the strongest possible legal arguments to protect the interests of non-Aboriginal British Columbians, and all to apparently protect the sanctity of “reconciliation” and other implied political goals.

Not to be outdone, the B.C. government’s litigation directives are designed to “uphold Aboriginal rights, treaty rights and Indigenous human rights.” The directive states that “counsel must ensure that their submissions and positions are not directed at undermining those rights, including Indigenous Peoples’ right to self-determination.” Also, “The Province will also only plead defences of surrender or abandonment [of land] in exceptional circumstances” but ‘will not advance arguments based upon the unilateral extinguishment of Aboriginal rights.’”

Last year’s court ruling raised serious questions about the state of private property in B.C. and perhaps across Canada. Again, these politically motivated guidelines and directives hobble counsel acting for both the federal and provincial governments. Such directives prevent government lawyers—whose salaries are paid for by taxpayers—from making every available legitimate legal argument on behalf of Canadians and British Columbians.

Rather than having the freedom to exercise their professional responsibilities in a legally appropriate and unbiased manner, government lawyers will essentially help advance political goals beyond the already expansive judicial interpretations of Aboriginal rights.

Clearly, if the federal and B.C. governments want to protect private property and help restore certainty in B.C., they should eliminate these guidelines and directives and allow their lawyers to employ all legitimate arguments against the supremacy of Aboriginal title.

No government should use identity politics to guide its decisions about litigation, and all Canadians deserve governments that act to protect their interests, including their private property.

Geoffrey Moyse, K.C., is a senior fellow with the Aristotle Foundation for Public Policy and specializes in Canadian Aboriginal Law, Constitutional law and public law, including the United Nations Declaration on the Rights of Indigenous Peoples. Photo Credit: iStock.