Vaughn Palmer: Despite political assurances on Aboriginal title, private land owners in B.C. have reason to be spooked |
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Vaughn Palmer: Despite political assurances on Aboriginal title, private land owners in B.C. have reason to be spooked
Opinion: Ambiguity in recent federal deals and the Cowichan court ruling leaves land owners reason to be leery
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VICTORIA — It took just one sentence in one appraisal this week to illustrate the growing impact of Aboriginal title on private property evaluations in B.C.
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“We assume the subject property is not subject to a land claim and they are valued as if unencumbered,” said the relevant passage in an appraisal of a “run of the mill” commercial property near a transit line in Metro Vancouver.
Vaughn Palmer: Despite political assurances on Aboriginal title, private land owners in B.C. have reason to be spooked Back to video
Brad Jones, chief development officer for Wesgroup Properties, posted a screenshot of the “limiting condition” on social media, saying he’d not seen language like that before.
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Jones declined to identify the property in an interview with Joanne Lee-Young of Postmedia. He did say there was nothing about it “that would make you think there could be title risk.”
While the limitation was “a new one to us,” as Jones put it, there are a growing number of such hedged appraisals, as Lee-Young discovered and reported on page 1 of The Vancouver Sun Thursday.
She also quoted a more detailed example from a different appraisal:
“This report is completed on the assumption that there are no First Nations claims of any kind impacting the subject property or any future development of the subject lands and that the appraiser makes no representation regarding the impact of any existing or future First Nation claims on title, use, marketability or value.
“It is further assumed that any planning process, development or sale process will not require First Nations consultation. Should this not be the case, value would be impacted,” it cautioned.
The parent organization for appraisers in B.C. confirmed that such conditions are becoming more common in the province.
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“Some valuers are attaching limitation clauses to their appraisal reports suggesting inherent assumptions that current, past and potential future land claims have not been considered in current valuation assignments,” said Allan Beatty, president of the B.C.-Yukon arm of the Appraisal Institute of Canada.
He said recent court cases and litigation involving Aboriginal title were “contributing to speculation that private property rights could be affected. Some imply that this will inevitably have adverse effects on the value of lands in private ownership within or in close proximity to lands under claim by First Nations.”
The trend spilled over into question period in the legislature Thursday. Opposition Leader Trevor Halford of the B.C. Conservatives quoted the appraisal institute in challenging Premier David Eby’s suggestion that “there’s no issue with private property rights” in B.C.
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Vaughn Palmer: Despite political assurances on Aboriginal title, private land owners in B.C. have reason to be spooked Columnists
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The premier, fired back, disputing Halford’s suggestion that private property is “at risk.” He cited the province’s recent success regarding the finding of Aboriginal title for the Cowichan Tribes over several hundred hectares of public and private land in Richmond.
“We entered into an agreement with the Cowichan chiefs, a joint statement that those private properties in the Cowichan title area are not at risk,” said Eby.
At the same time, said Eby, the province is mounting a longer term defence of private property by appealing the Cowichan case.
The premier can’t have it both ways on risks.
In the Cowichan case, B.C. Supreme Court Justice Barbara Young found that Aboriginal title was a “senior and prior interest” in the land.
Also that “the exercise of Aboriginal title and fee simple (private) interests can coexist, but may not be exercised in their fullest form. The exercise of either will require modification or limitation.”
The limitation poses a significant limit on the ability of the private land owners to use, develop or sell their land. Nor did the judge rule out the possibility that the Cowichan chiefs would seek ownership in the future.
“They are not pursuing exclusive use and occupation of privately-owned lands at this time,” she wrote. “What they choose to do in future negotiations or litigation is speculative.”
She also cautioned that Indigenous reconciliation inevitably means a change in the status quo.
“Sometimes the hardship will be borne by Indigenous peoples and First Nations. Sometimes it will be borne by non-Indigenous Canadians.”
Eby further insists that no threat is posed to private property in the federal government’s recent agreement to recognize Aboriginal rights and title for the Musqueam over much of Metro Vancouver.
However there’s no guarantee for private property in the agreement.
Rather it says: “Nothing in this agreement shall be construed as prejudicing, limiting or restricting … the nature, scope or content or geographical extent of Musqueam’s Aboriginal rights and title or the geographical extent of Musqueam territory.”
The uncertainty regarding Aboriginal title is multiplied by the NDP government refusal to specify the number and extent of title cases in B.C.
When Postmedia reporter Gordon Hoekstra asked for a comprehensive list, the Ministry Of The Attorney General refused to provide it. He was instead told to undertake a comprehensive search of the court registries.
Either the New Democrats have a list but won’t disclose it. Or, more disturbing, they don’t know themselves how many of the province’s 200 or so First Nations have filed a lawsuit to confirm Aboriginal title.
Against that backdrop, no wonder appraisers are hedging their reports on private property by acknowledging up front the growing uncertainties regarding Aboriginal title in B.C.
vpalmer@postmedia.com
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