Jamie Sarkonak: Canadian media ate up false news that Aboriginal title was no threat

On Thursday, the Canadian Press told readers far and wide that private property was safe from Aboriginal title thanks to that day’s decision by the Supreme Court. It wasn’t true at all, but the national wire service hasn’t even bothered to issue a correction, let alone a retraction.

What actually happened was this: the Supreme Court declined Thursday morning to hear an appeal from New Brunswick’s highest court about whether the indigenous Wolastoqey Nation, in its quest to claim half of the province, can go after private property in addition to Crown land.

The Brunswickian judges had answered that question with “Kind of”: Aboriginal title can be found to exist on private property, for which the Crown will be liable (not the private owners); Aboriginal title can’t, however, be declared on private property, which would involve handing over ownership rights to the Indigenous people. This two-pronged system isn’t found elsewhere, including notably B.C., but this is how it will work in New Brunswick until the province’s appeal court, or the Supreme Court, decides otherwise.

The Supreme Court’s refusal to hear the case is not a ruling and has no legal bearing on the rest of the country, but you wouldn’t have gotten that from the ensuing Canadian Press report. The initial headline that circulated widely was this: “Aboriginal title can’t apply to private land, High Court rules.” This was wrong in two ways: the Supreme Court didn’t rule anything, and the decision for which appeal was sought found that Aboriginal title could apply to private land.

The Canadian Press went on to open the story with the following line: “The Supreme Court of Canada has upheld a ruling that Aboriginal title cannot be declared over private land, in a decision the federal government says will have an impact on the Cowichan Tribes case in British Columbia.”

Again, this was riddled with errors: the Supreme Court didn’t uphold anything (for it to do that, it would have had to hear the case). Nor did the court say whether Aboriginal title can be declared over private land — that remains the rule in New Brunswick only. The reporters added to the false impression by uncritically repeating an assertion by the federal government that the top court’s refusal to hear the appeal would impact a case in B.C.

At no point did they properly explain the ruling by the New Brunswick Court of Appeal, quoting only a side point made by the court that giving Aboriginal titleholders the exclusive rights to occupy privately owned land “would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.” Grievously, they didn’t include the part where the judge explicitly said that Aboriginal title claims can be found on private property.

None of these fatal flaws stopped the story from making the rounds. Many outlets republished the Canadian Press story rather than write something original. It appeared in CTV, Global News, CityNews, APTN and more.