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Brian Giesbrecht: The Implications of NB Premier’s Motion on Land Claims

New Brunswick Premier Blaine Higgs recently introduced a motion to protect New Brunswick property owners from a large indigenous land claim, effectively expressing a lack of trust in various parties involved. This includes indigenous politicians making the claim, the Trudeau Liberal government, and even the Supreme Court, which has expanded indigenous rights beyond what was originally intended by the constitution makers.

It is understandable for Higgs to distrust the indigenous leaders who are seeking more than half the province. Their claim that small landowners will not be affected is disingenuous, as their lawsuit argues that the province acquired defective title to the land from the beginning. This means that all individual landowners in the province who subsequently purchased the land would also acquire the same defective title.

While the chiefs promise to leave the landowners alone if their claim is successful, this assurance is contingent on these specific chiefs remaining in power and honoring their promise. If future chiefs change their stance, landowners could face compensation claims or even eviction. Higgs has witnessed similar situations in British Columbia, where indigenous leaders claiming Aboriginal title have taken over a provincial park and restricted non-indigenous citizens from entering. He also cites examples of individuals being adversely affected by costly lawsuits involving indigenous rights, such as the Restoule case in Ontario.

Higgs’ lack of trust in the Trudeau Liberals is also justified. Their willingness to accept the unpredictable consequences of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including its potential impact on resource development, has raised concerns among premiers. There is a perception that Trudeau is willing to infringe on provincial jurisdiction to pursue his vague, yet ambitious, indigenous agenda.

The most significant question is whether Higgs is correct in not trusting the Supreme Court of Canada to protect the property rights of his constituents. Sadly, it appears that he is. Since the enactment of Section 35 in 1982, the Supreme Court has effectively created new indigenous property rights, expanding them at the expense of the majority of Canadians (both indigenous and non-indigenous) who do not live on reserves.

This outcome was not anticipated during the constitution debates in 1982. The premiers initially objected to including special indigenous rights in the Constitution out of fear that future Supreme Courts would invent new rights, as they have done. Premier Lougheed, in particular, refused to sign on until the word “existing” was included before “rights.” This addition was meant to emphasize that the Court should not create new rights that did not exist in 1982. However, the Court ignored this intention and proceeded to create new indigenous group rights based solely on birth. These newly established entitlements, such as “Aboriginal title” and “consult and accommodate,” now impact every Canadian property owner and hinder resource development without addressing the numerous challenges faced by the Indigenous population.

There are currently approximately 45,000 outstanding indigenous claims, including the New Brunswick claim and the Restoule case, which will likely reach the Supreme Court. The decisions made by these judges will shape the kind of country we leave behind for future generations. Lawsuits like the $95 billion compensation claim filed by 10 Treaty 9 Nations against Canada and Ontario exemplify the potential consequences of these claims, which future generations will be burdened with.

Before proceeding further down this path, it is essential to question our political and judicial leaders about the type of Canada they envision for future generations. Will it be a country divided into separate fiefdoms with different rights for different racial groups? Will certain indigenous communities prosper while others remain in poverty? Will the original intent of treaties be disregarded in favor of contemporary interpretations by unelected judges? Will Canadians maintain the ability to own property, or will it become a shared concept? Will the approximately 1% of Canadians living on reserves or “First Nations” have superior citizenship rights simply due to their birth? These profound questions are being decided by the Supreme Court, and their current answers are far from reassuring.

The Supreme Court’s handling of the upcoming Restoule case will provide insights into our country’s future. It is not only Premier Higgs who anxiously awaits these decisions but also other premiers concerned about potential encroachments on their jurisdictions and threats to their constituents’ property rights. For instance, in March 2021, the Supreme Court ruled that the federal government could interfere in what would typically be provincial jurisdiction under the justification that “carbon pollution knows no boundaries.” This decision allows the federal government to override provincial authority unless provinces implement carbon pricing meeting specific national standards.

How the Supreme Court handles federal government claims that encroach on provincial jurisdiction will determine the future of Canada. If the Court consistently favors the federal government in expressing climate or virus emergencies or in claims disguised as “reconciliation” that promote indigenous separatism, it is likely that other premiers will follow Higgs’ lead in protecting their constituents.

Ultimately, the fate of Canada as we know it is at stake.

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