The Quiet Erosion of Property Rights

While the Cowichan court decision, and to a lesser extent the more recent mineral rights court decision, have dominated discussions on how property rights are being eroded in British Columbia, the Eby government quietly signed yet another land-use agreement with an Indigenous group on Vancouver Island that fundamentally changes property rights and decision-making in the area.

As the premier himself has recognized, the erosion and uncertainty of private property in the province is imposing huge costs on average British Columbians, and will continue to do so until the government shows genuine leadership and provides clarity on this issue. The premier and his government cannot simultaneously oppose the recent court decisions while negotiating bilateral agreements with Indigenous groups that effectively have similar results as the court cases.

The Cowichan Decision: A Turning Point

The stability of private property in the form of fee simple ownership, which is what most homeowners and businesses maintain, was called into question in a 2025 court case recognizing the Cowichan Tribe’s Aboriginal title over 800 acres of Crown and private land in Richmond, a suburb of Vancouver. The judge found that where Aboriginal title is deemed to exist, it is “prior and senior” to fee simple property rights.

This has thrown the status of more than 150 private property owners into turmoil and forced the provincial government to establish a $150 million-plus fund to support loan guarantees and other measures as property owners struggle with uncertain property rights, in some cases an inability to renew mortgages and the potential for real declines in their property value.

Premier Eby heavily criticized the decision and indicated his government would support the appeal of the Cowichan case on several fronts, even though the government did not contest the case originally. Premier Eby also promised to enact changes to the legislation involved in the mineral rights case — legislation which he helped enact.

DRIPA and the Legislative Framework

The B.C. Court of Appeals recently found the province’s reformed mineral claims system violated its own law. In 2019, the B.C. legislature unanimously passed DRIPA, the Declaration on the Rights of Indigenous Peoples Act, which requires the province to “bring provincial laws into alignment with the UN Declaration.”

The UN’s Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, states that Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired — including the right to own, use, develop and control these lands, as well as the right to redress through either restitution or just, fair and equitable compensation.

Moreover, DRIPA requires the provincial government to develop and implement an action plan, in consultation and co-operation with Indigenous Peoples, to meet the goals of the UN Declaration. B.C. is the only province to adopt such a law requiring provincial laws to align with the UN Declaration.

Premier Eby was not only part of the cabinet that supported and passed DRIPA but was the attorney general who provided the clarifications on the implementation guidelines for the Act. While the Premier stated the government will amend DRIPA to scale back the power courts have, he hasn’t reversed his support for the mandate that DRIPA provides to the government to recognize Aboriginal title and provide management rights to Indigenous groups that erode private property in the province.

Bilateral Agreements: The Growing Patchwork

Consider the various bilateral agreements the Eby government has concluded with Indigenous groups across the province:

Economic Implications

These bilateral agreements are largely being negotiated covertly, without much public scrutiny, if any at all. Most British Columbians are not aware of their far-reaching and long-lasting consequences.

These agreements will continue to impose enormous uncertainty in the province, which affects business investment, discourages entrepreneurship and generally depresses economic growth.

At a time when the province is struggling with anemic economic growth, a near crisis in government finances, people voting with their feet and leaving the province, and a continued lack of private-sector investment, clarity and certainty regarding property is needed immediately as one step in reversing the province’s decline.