Liberals say they're confused by Poilievre's call to 'argue' against B.C. land-claims ruling they've already appealed

OTTAWA — Liberals say they’re not sure what to make of a letter from Conservative Leader Pierre Poilievre calling on them to “argue to overturn” a recent British Columbia Indigenous land-claims ruling they’ve already filed an appeal against.

“Mr. Poilievre’s a little late to the game, because the government appealed this decision three weeks ago,” said Jeremy Bellefeuille, a spokesperson for federal Justice Minister Sean Fraser.

Poilievre wrote an open letter to Fraser on Sunday, stating that the federal government “must argue in court” against the B.C. Supreme Court’s recent Cowichan Tribes v. Canada ruling , which he said threatened property rights across the country.

“(The ruling) is already causing investment to flee, with businesses and homeowners facing difficulties as funders have major concerns about the uncertainty this situation has created,” wrote Poilievre.

Crown-Indigenous Relations Minister Rebecca Alty was quick to note that the federal government appealed the landmark decision on Sept. 8.

“Canada disagrees with this court decision … Further legal clarity is required to address its potentially significant nationwide implications, particularly relating to private property rights,” said Alty in a statement.

The decision is also being appealed by the B.C. government, City of Richmond and Vancouver Port Authority, as well as two coastal First Nations’ groups.

The court ruled on Aug. 7 that the Vancouver Island-based Cowichan Tribes hold Aboriginal title and fishing rights over nearly 2,000 acres of ancestral lands in B.C.’s Lower Mainland, including private property.

Poilievre told reporters on Monday that the court got “property rights wrong” in the contentious ruling. He called on the federal government to “make legal arguments at the appeal level to overturn it.”

Dwight Newman, a law professor at the University of Saskatchewan, observed that some in the legal community have criticized government lawyers for not mounting a more aggressive defence in court.

“(Poilievre’s) letter doesn’t state specifically what arguments should be put forward, but there’s been some critique that the federal and provincial governments ended up not pursuing all of the arguments that they conceivably could have put forward,” said Newman.

Defence lawyers notably declined to press the critical issue of whether Aboriginal title was “extinguished” when private ownership was established over the lands by the government in the 1800s.

Newman added it would be “unusual” for a sitting federal justice minister to publicly lay out the specific arguments that government lawyers should make.

He noted that the federal government’s public legal posturing doesn’t always match the arguments they pursue in court, pointing to the ongoing court case surrounding Quebec’s use of the notwithstanding clause to insulate its 2019 secularism law.

“They were saying some things around what they were going to argue, although what they’ve ended up arguing has been a bit different than what they were talking about,” said Newman.

A long-awaited factum submitted by Fraser earlier this month sidesteps the law’s content entirely and focuses on constitutional issues raised by Quebec’s use of the notwithstanding clause, despite years of Liberal concern  about the law’s adverse effects on religious minorities.

The B.C. Court of Appeal has not yet set a hearing date for the Cowichan Tribes case.

National Post rmohamed@postmedia.com

• B.C. to appeal landmark land title ruling, citing possible ‘significant unintended consequences’
• Terry Glavin: A better response to B.C.'s Cowichan land ruling — calm down!

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