Legal experts warn of growing tensions between Indigenous title and private property rights ~~ Joseph Quesnel
Recent legal developments suggest that Indigenous rights and private property interests may soon collide. However, governments and the parties involved can take steps to prevent these values from competing.
A case in point is the 2024 Chippewas of Saugeen First Nation v. South Bruce Peninsula ruling by the Ontario Court of Appeal. The court upheld a decision confirming that the constitutional rights of the Chippewas of Saugeen First Nation take precedence over the fee simple property rights of private landowners.
Fee simple, the most common form of property ownership in Canada, offers significant economic flexibility, allowing land to be sold, leased or used as collateral. In this case, the court’s ruling presented a challenge to the traditional view of private property ownership, particularly where Indigenous rights are concerned.
Indigenous groups and mainstream Canadians could reach agreements to avoid conflicts between Indigenous rights and private property rights. As Justice La Forest said in the landmark 1997 Delgamuukw v. British Columbia ruling, “Let us face it, we are all here to stay.” His call for mutual understanding and pragmatism remains just as pertinent today as it was then.
The dispute centres around a two-square-kilometre stretch of Sauble Beach, which forms part of the Saugeen Reserve in Ontario. The land was excluded from the reserve boundaries when surveyed by provincial land surveyors. The Chippewas sought a court order, claiming that the Crown breached its fiduciary duty by not granting the beach as part of the reserve land. In the initial trial, the private landowners argued the “bona fide purchaser” defence, meaning they purchased the land in good faith, believing that the previous landowners held valid title to the property.
The appeal resulted in a ruling that the bona fide purchaser defence was not absolute. The judge declared that there was no reason why a First Nation’s treaty-protected reserve interest should, in every case, give way to private property interests, even those of an innocent good-faith purchaser. This sweeping statement left private property interests vulnerable, particularly when Indigenous interests are involved. It suggested that Indigenous rights may supersede private property rights, which raises concerns about the future of private land ownership in these cases.
It’s important not to over-interpret the ruling, however. The disputed land is small, covering only two square kilometres, and does not involve private residences. The ruling also leaves room for compensation, which helps mitigate some concerns for the affected landowners.
Nevertheless, private landowners had two primary concerns: first, that the court should have considered how to reconcile Aboriginal and Treaty claims with the rights of innocent purchasers on a case-by-case basis; second, that prioritizing Indigenous rights over private property interests could discourage investment and development.
Many legal scholars, such as Kent McNeil, John Borrows, and Peter Hogg, argue that Aboriginal title is the only constitutionally protected property right in Canada. In this light, the challenge is balancing Indigenous rights with the rights of private property owners. Justice La Forest’s statement in Delgamuukw — “We are all here to stay” — highlights the need for a solution that respects both.
A potential solution would be to consider constitutionalizing private property rights alongside Aboriginal title. By doing so, we could protect property rights for all Canadians while still respecting Indigenous rights. Furthermore, First Nations and municipalities could work together to co-manage land, ensuring that both Indigenous interests and private property rights are upheld.
The ultimate goal should be cooperation between Indigenous groups, municipalities, and provincial governments. By constitutionalizing private property rights and strengthening the protections for Aboriginal title, we could create a framework that prevents conflicts, ensures fair treatment for all, and helps Canadians live together in harmony.
Joseph
Quesnel is a senior research fellow with the Frontier Centre for Public Policy.
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