The Canadian Real Estate Investor — host Daniel Foch in conversation with Bruce Pardy.
Canadian law remains dangerously unclear on how Aboriginal title intersects with private fee simple ownership, leaving landowners, investors, and Indigenous groups in limbo. The Supreme Court of Canada recently declined to hear an appeal by the Wolastoqey Nation regarding Aboriginal title on privately held lands in New Brunswick. Contrary to some headlines, it neither endorsed nor rejected the lower court’s view that private owners likely wouldn’t lose their land outright if Aboriginal title is proven—instead, Indigenous groups would seek compensation from the Crown. As a non-binding provincial decision without a full trial on title, it resolves little. Courts have built extensive Aboriginal title jurisprudence yet dodged the core conflict: both systems claim exclusive control over the same land. In British Columbia, modern agreements granting title or governance powers over areas with private property have created overlapping authorities without clear priority rules, eroding market confidence and investment. Governments exacerbate the problem by publicly championing private property while embedding UNDRIP and expanding Section 35 collective rights, which establish distinct categories of citizenship with unequal entitlements. Ultimately, argues law professor Bruce Pardy, this two-tier constitutional approach clashes with equal individual rights and fuels endless disputes. The result is a growing crisis of confidence in Canada’s property rights regime—economic drag, political tension, and unresolved reconciliation trade-offs—with courts and politicians failing to deliver clarity.
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