Politics

Poilievre’s property rights push would shake Canada’s legal foundations

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By Sonal Gupta, Canada’s National Observer, Local Journalism Initiative Reporter

Conservative Leader Pierre Poilievre called it “regrettable” that fee‑simple property rights are not enshrined in the Constitution, insisting that “property rights are human rights” and that Canada needs stronger protections to underpin a “thriving property‑owning democracy.”

Poilievre’s comments, delivered in Richmond, BC last week, come as anxiety is rising in the Vancouver suburb over the interplay between property ownership and Indigenous rights. A 2025 court ruling on Cowichan land title has sparked fears that homeowners could lose their land — fears that experts say are unfounded and unprecedented — and has reignited a long‑running debate over whether Canada could adopt a constitutional property‑rights clause like that written into the US Constitution.

Cowichan leaders have, however, said that their legal actions are not about displacing homeowners but about recognition of title and jurisdiction. 

Constitutional culture

Experts say Canada rejected the idea of constitutionalizing property rights to protect government flexibility. 

“Canada is, in many ways, the counterfactual to the American Revolution — we developed a very different constitutional culture,” said David Schneiderman, a professor of constitutional law at the University of Toronto.

He said Canadians have debated amending the Constitution to include property rights ever since the Charter of Rights and Freedoms was signed in 1982. In the United States, India and Australia, courts have historically used constitutional property rights to strike down government actions meant to serve broader social or economic goals.

Learning from those examples, Canada’s constitutional framers deliberately chose not to entrench property rights in the Charter. “Constitutional property rights enable property owners to challenge government legislation — impeding the government’s ‘ability to do things’ — as violating constitutional rights,” Schneiderman said.

The US constitutionalized property rights after its 1787 Constitution and the Revolutionary War, then sold off or negotiated much of federal land to private owners — but Canada kept Crown land under public ownership as a legacy of British rule, he added. 

Later, in 1982, Section 35 enshrined Indigenous title as a prior “burden,” or claim, on Crown land. 

Section 35 recognizes and affirms existing Aboriginal and treaty rights, a form of collective land right rooted in Indigenous presence before colonization. Courts have interpreted those rights as significant but not absolute, requiring governments to consult and, when necessary, compensate Indigenous communities when their rights are affected, Schneiderman said.

Ilya Somin, an American law professor at George Mason University said in the US, constitutional protections for private property are enshrined in the Fifth Amendment. It says governments can only take land for “public use” — for instance, to build roads or schools — and must pay fair compensation. 

These rules apply to federal, state and local governments, and since the 1960s Indian Civil Rights Act, they also bind tribal governments on reservations. Somin said these rules don’t fully shield against disputes over who truly owns land between tribes and private owners. 

He said their system has serious flaws in practice. US courts have stretched “public use” so far that governments can seize homes for private malls or condos, as long as some vague public benefit, like jobs, is claimed.

Poilievre’s push to make private property a constitutional right is seen by some as a political move.

“Right now, politicians are capitalizing on perceptions of threat and uncertainty, and on the public’s general lack of understanding of this area of law,” said Scott Franks, an assistant professor of law at the University of British Columbia.

Franks said Canadian courts have long viewed Indigenous land rights as a pre-existing “burden” on Crown title — the Crown holds the title, but it can’t ignore the fact that Indigenous peoples were there first and still have legally recognized rights to the land. That’s why the government has to consult, negotiate and sometimes pay compensation when it makes decisions that affect those rights, he added. 

Franks said this approach stems from the Royal Proclamation of 1763, where King George III legally barred governors from settling Crown territories without first acquiring title from Indigenous peoples. In BC, Governor James Douglas initially followed those royal instructions by purchasing Indigenous lands through the early Douglas Treaties to enable settlement, but later shifted policy due to lack of funds, appropriating lands and setting aside reserves at village sites within traditional territories, all while recognizing those prior Indigenous interests, as later affirmed in the Calder case and Supreme Court decisions like R. v. Sparrow and Tsilhqot’in Nation.

Poilievre’s proposal to constitutionalize fee-simple property rights would require an entire rethinking of this framework, Franks said. 

He noted Canada’s existing protections — via statutes, common law and Charter Section 8 (unreasonable search and seizure) — already offer something like the US Fifth Amendment’s Takings Clause without needing constitutional upheaval. 

Franks compares Poilievre’s proposal to former BC Premier Gordon Campbell’s 2000 treaty referendum, where voters were asked if they agreed “private property should not be expropriated for treaty settlements” — stoking fears of Indigenous gains by sidestepping legal context. 

Franks said he sees the same debate today amid Vancouver’s housing crisis and income gaps, where it is being used to redirect public anger from grocery prices or affordability to Indigenous title claims. 

Most people have low legal literacy in this area and carry prejudicial beliefs about Indigenous peoples that make the pitch land, he said.

“It’s the shrewd politics of choosing an issue that will resonate in unfortunate ways.” 

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Top image credit: Conservative Leader Pierre Poilievre said it is ‘regrettable’ that fee-simple property rights aren’t enshrined in the Constitution. He made the comment in Richmond, BC, where a recent court ruling on Indigenous land title has sparked fears among homeowners that they might lose their land. – File photo by: Natasha Bulowski

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