Good Intentions Gone Bad

Attend a public event in Canada and you will likely hear it open with a land acknowledgment. In the city of Vancouver, for example, the script might read:

“This place is the unceded and ancestral territory of the hən̓q̓əmin̓əm̓ and Sḵwx̱wú7mesh speaking peoples, the xʷməθkʷəy̓əm (Musqueam), Sḵwx̱wú7mesh (Squamish), and səlilwətaɬ (Tsleil-Waututh) Nations, and has been stewarded by them since time immemorial.”

I’ve been present for many of these recitations, which are common in liberal areas of the United States too. They are usually received by their audiences as a Christian invocation might once have been: a socially required ritual in which only some believe, but at which it would be rude to scoff. After all, what harm does it do?

In the past few months, Canadians have learned that these well-meaning pronouncements are not, in fact, harmless. Far from it. Canadian courts are reinterpreting these rote confessions of historical guilt as legally enforceable admissions of wrongful possession.

In August, a British Columbia court ruled that the titles to public land across 800 acres south of downtown Vancouver must be subordinated to a new “Aboriginal title” belonging to a group of about 5,500 Indigenous Canadians.

Although the judge in question has claimed that this decision does not apply to private land, the logic of this ruling has proved so muddled that it has called into question not only the private titles of some 150 landowners in the region but also the ownership of almost every piece of private land in British Columbia—and possibly all of Canada. Some Americans may try to apply this precedent to the U.S. too.

The effects of the decision have been swift and harsh. Commercial-property values have collapsed in the city of Richmond because of uncertainty over titles. A hotel valued by its lenders at more than 110 million Canadian dollars in August traded hands for $51.5 million in October. I spoke this month with a landowner who had a major Canadian lender terminate discussions on a $35 million construction loan after the decision. At least one lease on an industrial building has been called into question because the tenant no longer knows whether the landlord still owns the premises.

To offset the damage, the government of British Columbia has offered $150 million in loan guarantees to local landowners, putting taxpayers on the hook.

[David Frum: Against guilty history]

The dollar amounts at stake are enormous. Before the ruling deflated values, the more than 100 homes, businesses, and commercial properties in the area were valued at $2 billion. Yet because this case ostensibly doesn’t apply to private landowners—who are expected to litigate their own cases—they were denied any opportunity to defend their interests. At an earlier phase in the proceedings, advocates for the plaintiffs argued, “It foments adversity and unnecessary hostility to frame this as a claim against private property holders”—a clever move, which the British Columbia courts accepted in 2017.

Eight years later, the judge in the case continued to dismiss concerns about property rights and the integrity of titles. Such talk, Justice Barbara Young ruled in her decision over the summer, “inflames and incites rather than grapples with the evidence and scope of the claim in this case.”

In the name of justice for historical misdeeds, the judge decided it was acceptable to deny Canadian landowners basic due process before depriving them of their rights.

The decision in Cowichan Tribes v. Canada “grapples with the evidence” in ways that may seem exotic, if not bizarre, to most legal scholars. Many claims for aboriginal title in Canada turn on “oral history”—stories and songs about the past preserved by the claimants. Such testimony would normally be prohibited by the rule against hearsay evidence, which exists to screen out unverifiable statements. The judge in this case acknowledged in her decision that “the ‘truth’ lying at the heart of oral history and tradition evidence can be elusive.” Yet she allowed this “elusive” truth to become the basis of a claim for billions of dollars’ worth of Canadian property. (Cowichan leaders did not respond to multiple requests for comment.)

If the logic of Cowichan is upheld, there is scarcely a landholding in British Columbia—or much of the rest of Canada—for which ownership is secure. My wife and I own 20 acres of rural property in Ontario. Our title, like that of most of my neighbors, traces back to Crown grants issued more than 200 years ago. All of those titles could be retroactively voided if the Cowichan precedent becomes Canadian law.

The lands at issue in Cowichan are situated in the delta of the Fraser River. About 35 kilometers upstream lies the city of Port Coquitlam, which marks the eastern verge of greater Vancouver. Much of Port Coquitlam is undeveloped. The terrain was once too boggy and hilly for construction projects and is now protected as parkland. At the center of the city, however, is a highly developable 244-acre parcel formerly occupied by a provincial mental hospital. If building rules are relaxed, that parcel would be very valuable.  

In 2016, an Indigenous group filed a still-pending land claim against the city of Port Coquitlam. The members want control of much of the city’s open spaces, including the former-hospital parcel, riverside parklands, and the premier athletic facility, Gates Park. The Kwikwetlem First Nation is even smaller than the Cowichan; it has a registered population of 560. In an interview this month, the group’s leadership disavowed interest in private lands, but the value of the public land sought is more than enough to make every member of the group a multimillionaire.

At the opposite end of Canada, the federal government agreed in February to pay $17.5 million to two Indigenous groups in tiny Prince Edward Island. Ontario is negotiating a claim for 36,000 kilometers, including the land underneath Canada’s Parliament buildings. In New Brunswick, the federal government paid $145 million in 2021—and now faces a demand for more than half of the province. An Indigenous group recently filed a Cowichan-like claim for much of the parkland on the Quebec side of the Ottawa River, opposite the Canadian capital of Ottawa—along with $5 billion in cash.

The Cowichan decision is an extreme but logical extension of an unresisted political revolution.

Among many Canadians in positions of influence, an idea has taken hold that Canada’s founding was a great crime that must be atoned for. The term usually applied to this atonement is reconciliation. That term is misleading. Reconciliation implies some kind of mutuality, but the Canadian version is strictly one-way: Demands by Indigenous nations and affiliated nongovernmental groups produce concessions, which invite yet more demands, which beget yet more concessions.

The Canadian national conscience is rightly troubled by the serious social problems afflicting Indigenous Canada. Indigenous people have shorter lifespans than other Canadians. They are less likely to graduate from high school. Their communities have been devastated by substance abuse. Indigenous women are disproportionately likely to suffer violence from the men in their lives. Indigenous men are more likely than other Canadians to go to prison.

Canadian politicians have directed considerable resources to trying to improve these ghastly trends. The federal Indigenous budget nearly tripled over the 10 years of the Justin Trudeau government, exceeding $32 billion a year—almost what Canada spent on national defense in the past fiscal year.

Yet these funds are often spent without concern for how they are used or whether they help anyone. A September 2025 federal report, for example, found that from April 2020 to March 2023, an Indigenous federation in Saskatchewan received $30 million for COVID-related programs, of which nearly $23 million went to expenditures deemed “questionable.”

Is this scale of suspicious spending typical? It’s hard to say. The Conservative government of Stephen Harper proposed the First Nations Financial Transparency Act, passed in 2013, which called for Indigenous communities to publish their accounts and salary structures. The Trudeau government, elected in 2015, promptly announced that it would not enforce this law—and even reinstated funding for Indigenous groups whose funds had been suspended for past violations.

Despite this support, the past decade has been calamitous for Indigenous people. Life expectancy for First Nations people in British Columbia dropped 7.1 years from 2015 to 2021, according to the nonprofit Indigenous Watchdog. Life expectancy for First Nations people in Alberta fell seven years from 2019 to 2023 and is now nearly two decades shorter than that of other Albertans, according to the province’s health statistics. Manitoba has seen similar trends.

The principal culprit has been a surge in deaths by drug overdose. In British Columbia, Indigenous people are six times more likely to die of a drug overdose than non-Indigenous residents. In Alberta, the disparity is eight times; in Ontario, nine.

As Indigenous people’s conditions have worsened in Canada, Natives’ advocates have become more radical in their critique of Canadian society.

In May 2021, a researcher announced a terrible discovery, which the CBC reported: “Remains of 215 children found buried at former B.C. residential school, First Nation says.” Other reports swiftly amplified this story with new grim details, including claims of about 751 unmarked graves near a different school in Saskatchewan. These reports were accepted and repeated by Prime Minister Trudeau and his government, and they triggered a spasm of national remorse. Flags over federal buildings were lowered for more than five months, the longest formal mourning in Canadian history. Provinces, cities, universities, schools, and other institutions engaged in rituals of contrition.

In 2021, Canada made September 30 a national day for truth and reconciliation. In May 2022, Prince Charles—Canada’s future head of state—visited the country to express contrition for the suffering of “survivors” of residential schools. Pope Francis visited that July to “beg forgiveness for the evil committed by so many Christians.” By October 2022, a motion to condemn Canada’s residential-school system as “genocide” passed the federal Parliament by unanimous consent.

Despite exhaustive investigations, however, no human remains were in fact found at the Kamloops, B.C., school or at any other alleged site of “mass graves.” Numerous claims of unmarked graves at other locations turned out to be nothing more sinister than rural cemeteries that had fallen into neglect.

There is no denying that abuses occurred at these residential schools, which ran from the 19th century to the 1990s and separated more than 150,000 Indigenous children from their families and communities to assimilate them into the dominant culture. The Harper government formally apologized for these abuses in 2008 and paid nearly $2 billion in compensation. But the more dire accusations of children buried in secret graves ultimately unraveled. Many Canadians began to feel as if they had been hoaxed. Grave Error, a book debunking the charges of genocide at residential schools, became a national best-seller.

Radicalization on one side, and resentment on the other, have grown together.

Now, in a generous impulse to share Canada’s wealth with First Nations, courts appear poised to destroy the systems that created the wealth in the first place.

The big cash transfers of the past decade proved only an opening bid for an even more audacious ambition: the redistribution of land rights from “settlers”—as non-Indigenous Canadians were invited to call themselves—to Indigenous groups. Unlike the ballooning federal Indigenous budgets of the past decade, which were approved by a majority in the Canadian Parliament, the matter of land redistribution has been left to the courts.

In the 20th century, aboriginal lawsuits typically turned on a breach of some treaty between the Crown and a Native population. In the 1984 case Guerin v. the Queen, for example, the aboriginal owners of treaty land in Vancouver sued the government over a deviously unfavorable lease and ultimately recovered $10 million in compensatory damages.

The problem raised by cases like Guerin, however, was how to win in the absence of a treaty violation. A solution was found in a magic word in the Canadian constitution: and.

The Canadian constitution assumed its modern form in 1982. Section 35 of the constitution affirms “the existing aboriginal and treaty rights” of Canada’s aboriginal population. Aboriginal and treaty rights? That conjunction has opened the enticing possibility that there might exist constitutionally enforceable aboriginal rights not specified in any treaty.

In the 1997 case Delgamuukw v. British Columbia, the supreme court approved a claim to 58,000 kilometers of Crown land. The Indigenous plaintiffs contended that even in the absence of a treaty, they held an “aboriginal title” to the land because of their continuing relationship to the area—a relationship proved by the plaintiff group’s songs, legends, and oral traditions. Once a hazy concept, “aboriginal title” has expanded into a right with real bite. In 2004, the supreme court of Canada ruled that the government had a duty to consult and accommodate Indigenous people anywhere that aboriginal title existed, or might later be found to exist.

That is the meaning of the phrase unceded and ancestral territory in those seemingly benign land acknowledgements. The phrase is not just a well-meaning observation about history; it’s an assertion of a continuing property right.

The traditional theory of Canadian land law is that private ownership traces back to a grant or sale by the Crown. But if large areas of Canada had remained aboriginal all along—if they never belonged to the Crown in the first place—how then could the Crown grant or sell them? The whole subsequent chain of transactions must be invalid.

The invalidation of Crown grants underlies the Cowichan outcome. It is also now prompting a powerful backlash.

On December 11, an appellate court in New Brunswick decisively rejected a Cowichan-like case for the redistribution of private land in that province: “A declaration of Aboriginal title over privately owned lands, which, by its very nature, gives the Aboriginal beneficiary exclusive possession, occupation, and use would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.” The New Brunswick decision does not overturn the Cowichan case, because Canadian federalism does not work that way. It does, however, complicate the Cowichan precedent, creating a contradiction left to other courts to resolve.

Once an aboriginal title is recognized, its holders can collect formal and informal rents from those who seek to develop what is Indigenous land. Such rents are now an everyday feature of Canadian life.

British Columbia will host seven matches of the 2026 World Cup. News broke early this month that the B.C. government paid $18 million to Indigenous groups in an unexplained connection to the Cup. The government and the groups offered only hazy explanations of what the payment was for, but it looks a lot like a fee to not raise objections. Another Indigenous group was offered $10,000 per person, presumably so it would not object to the reopening of a major gold mine in northwestern British Columbia.

[From the May 2021 issue: Return the national parks to the tribes]

Canada faced serious economic troubles even before the reelection of President Donald Trump in 2024. Business investment per worker declined from 2015 to 2025, the term of Trudeau’s prime ministership. Canada’s labor-productivity growth effectively stalled after 2017. According to a 2024 report for the Business Council of Canada, “The number of energy and natural resource major projects completed in Canada dropped by 37 percent between 2015 (88 projects) and 2023 (56 projects).” Also, critical-minerals production is down, “in many commodities by double digits since 2018.” Judicial decisions about the rights of these lands are not the only reason for Canada’s big construction slowdown, but they don’t help.

The uncertainty cast over private property by the Cowichan decision poses a particularly serious threat to Canadian investment and development. The judge in the Cowichan case offered little guidance to private landowners, and mostly recommended that the provincial government negotiate with the Cowichan on their behalf.

More than a few British Columbians doubt the commitment and effectiveness of their government’s advocacy for landowners. The government of New Democratic Premier David Eby has gone beyond even Trudeau’s federal government in its pursuit of a reconciliation agenda. In 2019, the province formally adopted the UN Declaration on the Rights of Indigenous Peoples into its local law. This was justified at the time as another benign goodwill gesture. But this month, a B.C. court ruled that this law really is law. It held that the province must now consult with Indigenous groups before approving any new mining project—and potentially any new land development—anywhere in the province.

B.C.’s attorney general, Niki Sharma, insisted to me that her team would vigorously defend private-property rights in court. She vows to appeal the Cowichan decision to the highest courts in Canada. But local officials are skeptical of the province’s pledges. Brad West, the mayor of Port Coquitlam, was dismissive of Sharma’s assurances when I met him earlier this month: “Just about everything that they said wouldn't happen is now happening.”

Canada has worked itself into a box. Prime Minister Mark Carney arrived in office this year with promises to accelerate the big national-development projects that stalled in the Trudeau years. But just when Canada most urgently needs to jump-start the country’s economic growth, the country’s courts are inventing new obstacles to development.  

This bout of judicial activism justifies itself as reconciliation. In reality, it’s a formula for division, resentment, and backlash. Canada is moving in a dangerous direction when it can least afford such misjudgments and mistakes.