Official Hansard
Mr. Speaker, I am pleased to rise today to speak on behalf of the Bloc Québécois on this opposition day. I would like to begin by explaining the underlying premise of my remarks. I want to talk about this in a reasonable and balanced manner, because I think it is in everyone’s best interest for Quebeckers and Canadians to be informed. I am glad the Conservatives moved this motion, because it gives us a chance to discuss an issue that may affect all Quebeckers and Canadians. It is important. For that reason alone, I can say that the Bloc Québécois supports the motion in principle, and I emphasize the word “principle”. That does not mean we agree with all the wording in the motion, and I will have the opportunity in my speech to talk more about certain aspects. Even though I have 20 minutes to speak, I am afraid that will not be long enough to say everything I want to say. This is a testament to just how rich this subject is, how far-reaching it is, and how it merits further discussion. First of all, the reason we support the motion in principle is that the decision in Cowichan Tribes v. Canada creates real legal uncertainty in Quebec and across Canada. This requires a response from the government, and we cannot simply deny the scope of the decision. It is groundbreaking in the sense of being new, and it creates very real and concrete obligations for both the provincial and federal governments in the reconciliation process with indigenous communities. Of course, as we have been hearing since this morning, this raises fundamental questions about land rights in Canada. When we talk about land and land rights, it naturally affects everyone. The decision in Cowichan Tribes v. Canada has raised uncertainties regarding private property rights that cannot be left unaddressed. We have discussed uncertainty and we have discussed concerns. When I mentioned earlier to the Minister of Crown-Indigenous Relations that we need to clear up grey areas, that is what I meant. That is one way of doing things. There are others that are complementary, but that is one. I would like to mention that property rights are not consistent across the country. The wording of the motion does not take that into account. I will give the example of Quebec, because we have a civil law tradition. We grant a real and absolute private property rights. In contrast, Canada takes a fee simple approach, as we see in the motion. Canada also relies on the many court rulings that have been handed down, including the Cowichan Tribes ruling. Fee simple ownership in Canada has roots in British feudal law and is the most comprehensive form of private property ownership. However, the fact that this case challenges private property rights is a good reason for everyone to consider the consequences. We will not necessarily do that here, according to the wording of the motion, but we also need to take into account the legal idiosyncrasies of each province and Quebec. I will come back to that a little later. Quebec is in a unique legal position because of the Quebec Civil Code, which is, of course, different from the common law system. The ruling is based on section 35 of the Constitution Act, 1982. On the one hand, we have a civil law tradition, but on the other, there is also the Constitution Act, 1982, which recognizes and affirms aboriginal title. I do not know whether I need to remind members of this, but I will do so anyway: Quebec did not sign the 1982 Constitution. When it comes to legal idiosyncrasies and context, I think that we also need to take that into account. I wanted us to consider that as well, and I wanted to remind my colleagues of it. That will have to be taken into account in future broader discussions. While I do not want to speak for the general public, I think that one problem in the British Columbia case, specifically for the Richmond area and the greater Vancouver area, is that the court deliberately refrained from ruling on the question of how ancestral title and fee simple interests will coexist. All issues related to governance, consultation, taxation and the validity of permits therefore remain unresolved. As we have heard, this is a complex issue. If I wanted to really simplify it, I would say that there are two types of rights: aboriginal title and fee simple interests, which establish the ownership of a territory or a piece of land, in the case of individual property. There are distinctions between the two, but we will not go into detail on that. In any case, both involve a property right. They coexist, but it is difficult to uphold absolute rights without any discussion. I think that is what people are afraid of, as they are wondering whether there is a hierarchy of rights. There is no such hierarchy, but people want negotiations. People are concerned because they do not know all the ins and outs of the issue. A clear mechanism needs to be put in place to resolve the issue of the validity of property rights. This is the most pressing issue resulting from this situation, and I believe all my colleagues have mentioned it. Of course, there is also the fact that people in British Columbia are concerned. I have read several articles on the subject and it is clear that the government itself, if not the municipality of Richmond, will provide information to the public and answer questions. It is therefore clear that other levels of government are willing to take charge in order to answer the public’s questions and reassure people. If municipalities and the Government of British Columbia itself are already having to inform the public, this shows just how many questions there are regarding the ruling in Cowichan Tribes v. Canada. Those questions need to be answered, even if, it must be said, our response cannot cover off all scenarios. There has been talk of negotiations, so there will have to be agreements. There needs to be a solution, and we do not have one. I would like to go over what led to the Cowichan Tribes v. Canada ruling. As I said earlier, this groundbreaking decision was a precedent-setting game-changer for both ongoing and future claims to aboriginal title. The doctrine of aboriginal title recognizes that indigenous peoples’ rights to their territory were not extinguished when Europeans arrived. There is a mechanism, there is case law establishing that aboriginal title is grounded in sufficient, continuous and exclusive occupation of the territory. This is what affirms aboriginal title. The B.C. Supreme Court confirmed that the Cowichan have exclusive occupation rights in determining land use. The 863-page judgment was delivered on August 7, 2025, which was less than a year ago. The Supreme Court of British Columbia found that the descendants of first nations demonstrated the existence of aboriginal title. That has already been done. It exists apart from the current provincial land title system. Two property rights, two land entitlements coexist, as I said earlier. The Cowichan Nation sought a declaration of an aboriginal title to their village to recognize an aboriginal right to fish. This is different from aboriginal title; it is aboriginal rights. Of course, some groups and governments, including Canada, British Columbia and the City of Richmond, opposed that request, as did the Vancouver Fraser Port Authority and two first nations, namely, the Tsawwassen First Nation and the Musqueam Indian Band. It took 513 days for the court to deliver a ruling, which was based specifically on the promise made by British Governor Douglas in 1853. The Cowichan proved their title. Once again, the court decided to omit a ruling or direction regarding the coexistence of aboriginal title and fee simple ownership, which calls into question concepts that we have long regarded as immutable in the history of Canadian land rights. That is unsettling. There is a lack of information. There are also concerns because, when we innovate, we are dealing with the unknown. That is what is happening here. I want to come back to fee simple ownership. As I said, the Conservative motion makes no mention of civil law, so I want to talk a little bit about that. I will likely be the only speaker today who talks about Quebec’s specificity. As I was saying, two legal traditions coexist in Canada: common law and civil law. Civil law governs private law relationships, while common law applies to public law. In the rest of Canada, private law and public law are governed by the principles of common law. Property rights fall within this single legal framework, which means that there are significant differences between Canada and Quebec in the way those rights are defined, exercised and protected. Fee simple ownership does not exist in Quebec. Ownership is an absolute right derived from section 947 of the Civil Code. Ownership is a real right exercised over the thing itself, directly and without an intermediary. Section 947 defines it as follows: “Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law.” This means that, under Quebec civil law, ownership has other essential characteristics, such as the fact that it is absolute, exclusive and guaranteed in perpetuity. Registering that right in Quebec’s land registry renders the right of ownership enforceable against third parties, meaning that the right is recognized and must be respected by third parties. In Canada, things are different. The concept of fee simple ownership can be traced back directly to British common law. It is the most comprehensive type of ownership recognized by common law and most closely resembles the absolute title concept set out in civil law. The theoretical concept of fee simple, however, is fundamentally different from what we have in Quebec. In theory, under common law, land is held by the Crown, not owned with absolute title, which means that the owner has a real estate right to the land, and fee simple ownership is the most complete type of estate. Despite the appearance of absolute title, the ownership in question remains a tenure, meaning that the Crown, theoretically, retains radical title. Fee simple ownership does not terminate on the holder’s death and can be disposed of or passed on by the owner or tenant. Indigenous reserve lands are held by the Crown in trust for indigenous communities. As a result, members do not have fee simple ownership, but rather a right of possession recognized under the Indian Act. Furthermore, fee simple ownership is enforceable against all persons, including the state. I would like to add a few words about residential property values and project financing, which is something my colleagues are concerned about, especially my official opposition colleagues who moved this motion. I have to admit that the Cowichan Tribes v. Canada ruling and its interpretation by the business and financial communities seem to have already had economic and political repercussions. We can see it. We can read it in the extensive coverage in both French and English media in Quebec and across Canada. However, it is important to keep in mind that there are still no studies or analyses with conclusive and robust data demonstrating a general, measurable effect on home values. I am not saying that such an effect cannot exist or does not exist. I am saying we do not have the data. I was talking earlier about information, and I believe that here we are addressing an issue of interest to all Quebeckers and Canadians. The goal is to determine what the actual impact is, without limiting ourselves to mere interpretation. I am not saying it is just an interpretation, because some of my colleagues have specifically mentioned that there are real, concrete cases. They have met with people, so it exists, but we would also like to have data, because that can obviously inform, support and complement our thinking, as well as our actions, as legislators. Legal experts and economists first point to the reputation and perceived impact of the decision regarding the Cowichan tribes. For market participants, the recognition of ancestral title means new long-term instability and uncertainty regarding the land tenure system in the region in question. There are concerns and legal uncertainty regarding the possibility of future restrictions on land use and development, as well as changes to land-use planning regulations and the governance of that territory. Some pundits have also noted that, even without an obvious drop in prices, uncertainty about the future liquidity of properties and the ease of resale may be enough to influence decisions to buy, sell or invest. The market is heavily influenced by confidence. A legal jolt like this one could be an additional risk factor that might affect property valuations and influence appraisers’ caution, although, as I mentioned earlier, this cannot really be accurately quantified just yet. Moreover, as I believe my colleagues have mentioned, and as was pointed out in several articles I have read, it is not as easy as it once was to get a loan. It is becoming harder. The B.C. government is already trying to address this situation. Let me get back to my point. I tend to ramble when I speak, but I knew where I was going with this. When institutions refuse to acknowledge a direct link to decisions, even reviewing the risk model or requesting more detailed legal opinions can increase the costs associated with due diligence. This can result in financial institutions adopting a more cautious approach to new loans and refinancing, as well as access to credit being tightened temporarily in the sectors most directly affected. I do not have much time left. Although I spoke primarily about Cowichan Tribes, I could have talked about Musqueam as well. I did not talk about the Wolastoqey Nation of New Brunswick either, even though the decision handed down in that case seems like the opposite of the outcome in British Columbia. Once again, this shows the complexity and concerns that can arise from decisions rendered by courts like the Court of King’s Bench of New Brunswick or the Supreme Court of British Columbia in relatively similar, yet not identical, cases. Although I will not go into detail, there are some similarities that make it hard to tell exactly where things are heading, despite the need for certainty. I did not have enough time to discuss the Conservatives’ motion in detail. Evidently, I can say that the Bloc Québécois supports it in principle. We would certainly like to make some changes to it. I can say without hesitation and in good faith that this topic could very easily be discussed by the Standing Committee on Indigenous and Northern Affairs. That is what committees are for. I fail to see the utility of creating a special committee, but I am open to discussing the matter, and then we will see whether we support the motion or not.
