By David Frum
Saturday, December 27, 2025
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.
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.
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.
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