Commentary
New Brunswick Premier Blaine Higgs is essentially saying “We don’t trust you” in the motion
he introduced to protect New Brunswick property owners from a massive indigenous land claim.
He is saying it to the indigenous politicians who are bringing the claim, to the Trudeau Liberal government, and to a Supreme Court that has stretched Section 35 and indigenous rights far beyond what our constitution makers intended.
Is he right not to trust them?
He is certainly correct not to trust the indigenous leaders who are claiming more than half the province. Their promise that their claim does not go after small landowners is disingenuous. Their lawsuit alleges that the province had defective title to the land from the beginning—that the Crown originally only acquired a shared ownership of the land, namely the part that did not include the “Aboriginal title.” (This is basically the same claim made in the Ontario Restoule case that is now headed for the Supreme Court, except that the New Brunswick case is based on “Aboriginal title” whereas Restoule is based on treaty rights.)
What is the law? In short, “
root of title” means that anyone acquiring land from the original owner can acquire title only as good as that of the original owner. So, if New Brunswick acquired a defective title from inception, as alleged by the claim, every individual landowner in the province who subsequently bought that land acquires that same defective title.
The chiefs’ promise to leave the landowners alone if their claim is successful, is only good if these particular chiefs remain in power and if they honour their promise. If they change their minds, or if future chiefs don’t honour that promise, the landowners could find themselves facing demands for compensation, or even eviction. Higgs sees what is happening in B.C. where, among other alarming threats to property rights, indigenous leaders claiming Aboriginal title have recently
taken over a provincial park and prevented non-indigenous citizens from entering.
He sees other examples of people being ruined by expensive lawyers armed with their new “consult and accommodate” weapon, such as various aspects of the Restoule case
as described by Ontario lawyer Peter Best.
So Higgs is right not to rely on the chiefs’ assurances that small landowners won’t be affected.
Is Higgs right not to trust the Trudeau Liberals? Yes. Their eagerness to accept the completely unpredictable consequences of UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples), including its de facto veto on resources development, has the premiers worried. At the least, there is a perception that Trudeau is prepared to infringe on provincial jurisdiction to achieve his murky, but ambitious, indigenous agenda.
