Jamie Sarkonak: Danielle Smith gets it. Aboriginal rights have gone too far

Alberta Premier Danielle Smith joins provincial and territorial leaders at the Western Premiers' Conference 2026 to discuss shared priorities, regional collaboration, and economic opportunities across Western Canada. Photo by Government of British Columbia

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Within the tangle of Indigenous rights holding down the Canadian economy is Section 35 of the 1982 Constitution — the Indigenous rights guarantee. It’s the country’s very own Gordian Knot, and that’s why it was such a good sign that Premier Danielle Smith is willing to split it.

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“If there’s an appetite among the other premiers to talk about defining that ever further through some kind of constitutional amendment, I’m open to having that conversation,” Smith told reporters at a Friday news conference. She added that the conversation could start as early as this week.

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Section 35 is the reason why private property rights have been in flux in B.C. since last summer; it’s the cause of death for pipeline projects that couldn’t survive past the drawing board. It’s a convenient excuse for weak governments to justify their inaction when Indigenous fishers on the East Coast harvest illegally. And earlier this month, when an Alberta judge invalidated a citizens’ petition on secession for the preposterous reason that Indigenous people weren’t consulted first, it became a barrier to democracy.

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Since it was added in 1982, this part of the Constitution has grown far beyond treaty acknowledgements and assurances that traditions will be considered when state decisions are made. This is because the courts have interpreted it more broadly and given it more power over time. In 2004, for example, the Supreme Court decided that Section 35 imposes upon the Crown a duty to consult with potentially affected Indigenous people whenever an upcoming government decision could affect their interests.

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This has given the anti-development wings of the Indigenous community incredible leverage in their efforts to roadblock the Canadian economy. They’re much more likely to win in court if they decide that consultations aren’t to their standard. Even the most unserious arguments that fail in the end — like the claim that a grizzly bear spirit would be disturbed by a new ski resort and thus it should not be built, which lost at the Supreme Court in 2017 — can pause projects for years and cause such a political headache that projects die on the page anyway.

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Last year, a judge in B.C. applied that duty retroactively to Vancouver-area colonial officials a century ago in a case called Cowichan Tribes. To the shock of no one, these long-dead men did not meet her high standards. The effect? Some early land transactions that took place long ago in an area of Richmond were tainted. The people who own those lands today were told in August that the local Cowichan Tribes also have exclusive property interests over the area. It doesn’t make a lot of sense, and, by the account of Aboriginal law lawyer Thomas Isaac, it appears to be causing landowners grief.

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“I know of two examples, firsthand knowledge, of two commercial purchases in the eight-digit range — the tens of millions — of two commercial parcels, two separate deals, not on the 800 or the 1,800 acres (in the area affected by the court decision) … within the city of Richmond,” Isaac told the Kelowna Real Estate Podcast in December.

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“Both of those deals fell apart because the purchasers walked away, and in both of those instances, the only reason that was given was a lack of certainty in British Columbia’s land title system and the Cowichan decision.”