John Robson: The Perils of Redefining Land Ownership in Canada

Commentary

The B.C. Supreme Court monkey-wrenched our Constitution in “Cowichan Tribes” this August. It didn’t just say the plaintiffs’ ancestors had been ripped off and should get compensated. It ripped up the notion of real property in Canada. Which seems as short on truth as on reconciliation.

Some commentators are brushing aside concerns, saying just negotiate the definitive resolution of aboriginal land claims that’s eluded us for over a century and voila, everyone gets what they want. But as Henry Kissinger wisely observed, “A negotiation can succeed only if the minimum terms of each side can be made to coincide.” Here, I’m not even sure the definitions can.

The decision will be appealed, as the B.C. “Supreme” Court is confusingly not supreme even provincially. But “you never know what a judge will do,” like overleaping mere specifics to declare “fee simple” property titles in Canada generally “defective” because they are “burdened” by aboriginal title. But we can at least discuss what they should do.

Forget Airplane 2’s “Pretend nothing has happened and hope everything turns out all right in the morning.” Or Yes Minister’s four-stage foreign office crisis-management: 1) Say nothing is happening. 2) Say it is but it doesn’t matter. 3) Say it matters but we can’t do anything. 4) Say we could have done something but now it’s too late. Instead, because reconciliation must rest on truth, let me raise two general points.

First, what does international law actually say about how governments generally establish title to territory? And second, what would happen if we substituted Canada’s novel understanding elsewhere?

The Canadian chattering classes habitually toss about trendy terms like “international law” without explanation or examination. But it’s certainly not a solid thing like domestic law, given the absence of any functioning international legislature, let alone popular legitimacy, or police or courts to enforce whatever it is. And those who think before they speak generally concede that it’s nebulous, the theory has changed considerably over time, and the practice is heavily de facto, not de jure.

For my part, I confidently define “the state” as “that entity which claims and enforces a monopoly on initiating the use of force within a jurisdiction. It doesn’t have to be built on the consent of the governed; the House of Saud really governs Saudi Arabia as much as the British government the UK. Nor must it be competent, though if its capacity or will collapses sufficiently, it ceases to be “the state,” as in France in 1789 or Russia in 1917. And no matter what you think of Lenin, only lackwits would claim a lawsuit can, or should, restore the Czarist regime.

Nor is anyone bringing back Ur of ancient Mesopotamia, the Roman Empire, or the Sanjak of Novi Pasar. Virtually all governments known to history are history, including the Iroquois Confederacy. But not the government of Canada.

It really exists, and no “freeman on the land” fantasy can displace it. Even an “unceded land” acknowledger will, if punched, invoke the Canadian Criminal Code.

By elementary extension, any government that asserts and exercises sovereignty over a territory continuously for a significant period is in lawful possession. Which Britain, then Canada, have done here.

Even if it’s ugly, there’s no other possible method. Consider what would happen if we tried to apply the novel standards being conjured up in Canada to territorial changes in, say, Europe or the Middle East in the last 250 years. Rectifying even plainly massive injustices would require massive redistribution of territories and peoples, producing chaos, famine, misery, rage, and, yes, injustice.

I say 250 years because it’s when written records peter out here, whatever courts may gabble about oral tradition like “Sky Woman fell from a hole in the sky” being as credible as quantum theory. Actually, it’s as credible as Brutus of Troy founding Britain. Or the strange Laurentian notion that North American aboriginal bands sat exactly where they were from time immemorial, unlike any other humans ever, hunter-gatherer or otherwise.

Even if we knew who the Iroquois or Aztecs slaughtered to get their land, what could we do? Or in Europe if we decided written records should restore title to the displaced? Including Huns, Vandals, and the Polish-Lithuanian Commonwealth. Not to mention the Middle East. Israelis have written documentation of millennia-long possession of land that Muslim oral tradition says used to be a mosque. But what of Chaldea?

Oh, and how about giving their European land back to the relatives of Holocaust victims? Nor do I know what anyone wants to do to, say, black Americans owning homes on former aboriginal land? Send them back to Africa where they aren’t even from?

It’s nonsense. And despite modern court practice, nonsense can’t be sound jurisprudence. Award compensation for past injury, sure. Be just in our own time. But don’t burn our Constitution in a sacred fire.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.