Fraser Institute Proposes Constitutional Changes in B.C. Indigenous-Title Property Fight

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A legal fight over Indigenous title and privately held land in British Columbia has moved into a new phase, with the Fraser Institute arguing that governments should consider changes reaching all the way to Canada’s Constitution. On August 20, the Vancouver-based public-policy think tank released a package of proposals responding to uncertainty sharpened by the landmark Cowichan Tribes litigation in Richmond. The options range from a B.C.-specific constitutional amendment to a renewed emphasis on modern treaties and, in the most sweeping proposal, repeal of Section 35 of the Constitution Act, 1982. None of those ideas changes the law by itself, and the underlying court ruling remains under appeal. But their publication illustrates how a dispute that began with a historic village site on the Fraser River has developed into a much wider argument about registered property, Indigenous rights, reconciliation and constitutional certainty.

Fraser Institute Puts Three Very Different Options on the Table

The Fraser Institute’s August 20 release does not advocate one small legislative adjustment. Instead, it presents three fundamentally different ways of responding to what the organization characterizes as a growing conflict between Aboriginal title and conventional property rights in British Columbia. University of Saskatchewan law professor Dwight Newman proposes exploring Section 43 of the Constitution Act, 1982 for a province-specific amendment clarifying the relationship between Aboriginal title and private property. Indigenous-law practitioner Thomas Isaac emphasizes negotiated treaties, while Queen’s University law professor Bruce Pardy proposes a much broader constitutional restructuring centred on removing Section 35 protections and revisiting other legal distinctions involving Indigenous peoples.

Those alternatives matter because they operate at entirely different levels. A Section 43 amendment would attempt to create a targeted constitutional rule for British Columbia. Treaty negotiations would leave the constitutional protection of Indigenous rights intact while attempting to define land, governance and resource relationships through negotiated agreements. Pardy’s proposal would alter the constitutional foundation on which decades of Aboriginal-rights jurisprudence have been built. The Fraser Institute is a policy organization rather than a government, so the release should be understood as an intervention in the public debate, not an enacted program or pending constitutional amendment. Its significance lies in putting unusually far-reaching options into a dispute already attracting national attention.

The Cowichan Ruling Turned an Abstract Legal Question Into a Property Fight

The immediate backdrop is Cowichan Tribes v. Canada, the August 2025 B.C. Supreme Court decision arising from a claim connected to Tl’uqtinus, a historic Cowichan village on the south arm of the Fraser River in what is now Richmond. The plaintiffs sought Aboriginal title over approximately 1,846 acres along with recognition of a food-fishing right. After a trial lasting more than 500 days, the court found Aboriginal title had been established over only part of the claimed territory. Richmond subsequently described the recognized area as approximately 732 acres. The decision also found that Aboriginal title was a prior and senior interest and declared certain fee-simple interests belonging to Canada and the City of Richmond defective and invalid.

The most important qualification is often lost in the political debate. Privately held land lies within the area affected by the title finding, but the plaintiffs did not ask the court in this proceeding to invalidate the fee-simple titles of individual private owners. Instead, the court found that the Province had a duty to negotiate in good faith over reconciliation of continuing Crown-granted private interests with the established Aboriginal title. British Columbia, Canada, Richmond and the other parties challenged various aspects of the judgment. That leaves a highly consequential distinction: the ruling raises serious questions about how Aboriginal and fee-simple interests interact, but it did not amount to an immediate court order cancelling every private title in the affected Richmond area.

Section 43 Is the Targeted Constitutional Route

Newman’s proposal focuses attention on a provision of the Constitution that receives far less public discussion than the familiar national amending formula. Section 43 permits constitutional amendments concerning provisions that apply to one or more, but not all, provinces. For an amendment applying only to British Columbia, authorization would generally require resolutions from the House of Commons, the Senate and the B.C. Legislative Assembly rather than approval from legislatures representing seven provinces and at least 50 per cent of Canada’s population. Newman argues that the mechanism could potentially be used to establish a B.C.-specific constitutional protection for private property and clarify its relationship with Aboriginal title.

The concept is not entirely new. Newman examined Section 43 as a possible mechanism for entrenching property rights more than a decade ago in the Constitutional Forum. Canada has also used Section 43 for province-specific constitutional changes, including amendments dealing with denominational-school provisions and New Brunswick’s linguistic framework. That precedent does not mean a B.C. property amendment would automatically survive judicial scrutiny. The central legal question would be whether Section 43 can legitimately support a new rule of this character and scope, particularly where it intersects with rights recognized nationally under Section 35. Even Fraser Institute commentary sympathetic to constitutional reform has acknowledged uncertainty over how broadly courts would interpret the bilateral formula. A Section 43 strategy could therefore produce another constitutional lawsuit before it produced lasting certainty.

Treaty-Making Offers a Negotiated Alternative

Isaac’s proposal takes a markedly different direction by treating negotiation rather than constitutional displacement as the primary mechanism for resolving overlapping claims. Modern treaties can specify ownership, governance powers, resource rights, fiscal arrangements and relationships between Indigenous and Crown governments. According to the B.C. Treaty Commission, eight constitutionally entrenched modern treaties are being implemented in the province when the Nisga’a Treaty is included. The commission also reports that 61 self-determining First Nations, representing 113 current and former Indian Act bands, are participating in or have completed treaties through the B.C. negotiations process—about 55.6 per cent of the province’s 203 Indian Act bands.

That approach offers something litigation often cannot: governments and First Nations can design rules around local circumstances before a judge is asked to choose a legal remedy after a conflict has already hardened. Modern treaties are tripartite agreements involving a First Nation, British Columbia and Canada, and the current process expressly describes certainty regarding land and resource rights as one of its objectives. Treaty-making is not fast, however. Negotiations can take years, involve difficult questions of territory and overlapping interests, and require political and community support. Three First Nations—K’ómoks, Kitselas and Kitsumkalum—ratified modern treaties in 2025, illustrating that the process remains active. For property owners seeking an immediate answer after Cowichan, however, negotiation may feel slower than a constitutional rule even if it ultimately produces a more customized settlement.

Repealing Section 35 Would Be a Much Bigger Constitutional Reset

Pardy’s proposal is in another category altogether. Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of Canada’s Indigenous peoples and expressly includes First Nations, Inuit and Métis peoples. Modern land-claims agreements are also included within the constitutional treatment of treaty rights. Pardy’s contribution to the Fraser Institute package proposes repealing Section 35 and making broader legal changes intended to eliminate distinctions based on Indigenous status. That would not merely answer the narrow question of whether fee-simple ownership takes priority in a Richmond title dispute. It would remove a constitutional provision that has shaped more than four decades of Canadian Indigenous-rights law.

Such a change would face a substantially higher constitutional threshold than the proposed B.C.-only route. Section 38 establishes the general amendment procedure requiring Parliament plus at least two-thirds of the provinces representing at least 50 per cent of the provincial population. Section 35.1 also commits federal and provincial governments, before changes are made to Part II of the Constitution, to convene a first ministers’ constitutional conference and invite representatives of Canada’s Indigenous peoples to participate in discussion of the proposed amendment. Repeal would therefore involve national constitutional politics, not simply passage of an ordinary federal statute. Whatever one thinks of Pardy’s policy argument, the practical difference is enormous: this would represent a restructuring of the constitutional relationship between Indigenous peoples and the Canadian state rather than a technical response to one disputed category of property.

B.C.’s Declaration Act Adds Another Layer to the Dispute

The constitutional argument is also unfolding alongside British Columbia’s own statutory reconciliation framework. The province enacted the Declaration on the Rights of Indigenous Peoples Act in November 2019, establishing the United Nations Declaration on the Rights of Indigenous Peoples as B.C.’s framework for reconciliation. Section 3 directs the provincial government, in consultation and co-operation with Indigenous peoples, to take measures necessary to ensure provincial laws are consistent with the UN Declaration. Section 4 requires an action plan to advance its objectives. The legislation also expressly states that nothing in the Act abrogates or derogates from rights recognized and affirmed by Section 35 of the Constitution.

That distinction matters because the Declaration Act and Section 35 are not interchangeable. One is provincial legislation; the other is constitutionally entrenched. Yet together they shape the policy environment in which land, resource and governance questions are negotiated. Supporters of B.C.’s approach describe the Declaration Act as a framework capable of producing more transparent and predictable relationships through consultation and co-operation. Critics, including Fraser Institute contributors, argue that the interaction among Aboriginal title, negotiated recognition agreements and provincial law has instead created uncertainty over decision-making and property interests. The result is a debate occurring on several legal tracks at once: constitutional rights established in 1982, evolving court interpretations of Aboriginal title, modern treaty negotiations and a provincial statutory commitment to implement UN Declaration standards.

Property Owners and Indigenous Nations Are Reading the Same Decision Differently

The public reaction to Cowichan demonstrates how the same judgment can produce sharply different assessments of risk. British Columbia’s attorney general said in August 2025 that the Province strongly disagreed with the ruling and warned of potentially significant unintended consequences for fee-simple private-property rights. Richmond similarly appealed and organized information for affected owners. Those concerns are tangible in a community where homes, businesses, farms, industrial properties and municipal lands sit within or near the disputed territory. For an owner who relied on the land-title registry when purchasing property, even uncertainty about future restrictions, financing or resale can carry real economic consequences before any title is actually cancelled.

Other legal analysts reject the idea that the judgment places ordinary private ownership across British Columbia on the verge of collapse. James Hickling, an adjunct professor at UBC’s Peter A. Allard School of Law, has argued that the decision is grounded in unusually specific historical facts and that claims of a broad threat to private owners are overstated. A March 2026 joint statement from the Province and the Cowichan Nation further said neither party was seeking to invalidate privately held fee-simple titles through their negotiations or appeals. These competing interpretations explain why careful wording is essential. Indigenous communities are seeking legal recognition of rights that predate Crown grants, while registered owners want confidence that the property system they relied upon will remain dependable. Both concerns are now concentrated in the same legal proceeding.

What Happens Next Will Matter More Than the Policy Proposals

The Cowichan dispute is still moving through the courts, which means the final rules governing the relationship between Aboriginal title and fee-simple property have not been settled by the 2025 trial judgment alone. By March 2026, the Union of B.C. Municipalities reported that all seven parties involved in the original proceeding had appealed. Separate efforts by private landholders to gain a stronger role in the litigation have added another procedural layer. At the same time, British Columbia and the Cowichan Nation have continued negotiations while pursuing their respective appellate positions. That combination—litigation and negotiation occurring simultaneously—shows how difficult it is to reduce the issue to a choice between Indigenous rights and private ownership.

The Fraser Institute’s package therefore arrives at a moment when several possible futures remain open. A higher court could substantially clarify or alter the Cowichan judgment. Governments and Indigenous nations could negotiate agreements that reduce conflicts without constitutional amendment. Parliament and British Columbia could debate a Section 43 approach, although its legal viability would itself be contested. Repealing Section 35 would require a far more ambitious national constitutional process. For now, none of those routes supplies an immediate answer. What the dispute has established is that legal certainty matters to Indigenous rights holders, governments, municipalities, investors and homeowners alike. The harder question is what kind of certainty Canada can create while respecting both constitutionally recognized Indigenous rights and a property-registration system on which generations of owners have relied.

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