Adam Pankratz: Cowichan ruling is scaring away investors. Don't let anyone say otherwise

Following the landmark Cowichan court ruling in August which declared private land title “defective and invalid” in areas over which Aboriginal title had been declared, the watchword from those who supported the decision was that everyone should calm down and not to be “alarmist.” Indeed that was the word used by the British Columbia Assembly of First Nations in their Oct. 23 news release on the topic, which blasted then B.C. Conservative Leader John Rustad for “selective discriminatory” and “alarmist” rhetoric. It is now clear Rustad was not nearly alarmist enough as the uncertainty chickens have firmly come home to roost in B.C.’s economy. 

On Dec. 5, the economic fallout from the NDP’s failure to vigorously defend private land and the public interest in court officially began in earnest. Montrose Property Holdings, a large industrial land owner which owns lands within the bounds of the Cowichan title decision, announced that they had lost their lender and a prospective tenant due to the uncertainty created by the August ruling, which declared Aboriginal title over 800 acres of the City of Richmond. The result was a $35 million dollar loan, meant to finance to finance the construction of a new building on their industrial property, being pulled because the lender could not be confident in the future of the land where the project was located.  

This clearly bodes extremely ill for any private landowner looking to renew their mortgage in that area. That’s bad enough, but Montrose Properties’ problems are now proving just the tip of B.C.’s cataclysmic economic iceberg. 

On Dec. 11th, not even a week after the Montrose Properties bombshell, it came to light that another major real estate deal was scuttled by the uncertainty over land title. On July 29,  the Versante Hotel close to the Vancouver International Airport had received and accepted an offer for the sale of their property from “an established hotel operator.” This offer was abruptly withdrawn on Aug. 18. A letter from Versante’s realtor Colliers communicated that the buyer’s concern was “the recent Cowichan Tribes court ruling, which introduced uncertainty around land title ownership and potential precedent risk.” 

That is as close as you are likely to hear of a business saying out-loud that B.C. has become uninvestible and the letter should send chills down the spin of every British Columbia business and citizen. Notably, the Versante property in question was not on land where Cowichan Aboriginal title has been declared. The prospect of the ruling’s precedence setting for land elsewhere in the province was enough for the buyer to yank their offer. There should be little doubt that this is quietly happening with many other deals, even if there are no public announcements about it. 

In a speech on Dec. 10 to the B.C. Chamber of Commerce, Premier David Eby attempted to position himself as the champion of private land rights in the province, saying he would “go to the wall” to protect private property rights. Perhaps. But going to the wall means trying everything in your power to achieve your goal; something Eby has only so far been willing to do in order to create confusion, distrust and chaos in this area. Eby and the NDP relentlessly change their story. First private property wouldn’t be affected. Then the courts were wrong. And now the situation is so bad that the government will need to step in to backstop loans on affected properties. British Columbians should give Eby absolutely zero benefit of the doubt when wondering if he will protect the public interest over his activist ambitions. His record is clear: he won’t and the solutions proposed are hasty bandaids on a massive self-inflicted wound.

For B.C.’s economy, worse seems almost certainly on the way. There may be new press releases as businesses simply start “quiet quitting” B.C. without any fanfare, but rather march their investment dollars to provinces and countries where property rights and the investment climate can be relied on. This won’t just be real estate deals either, but also investments in mines, pipelines, factories and any other type of physical infrastructure. 

Since August, anyone deeply concerned with the business uncertainty created by the NDP government’s refusal to defend the public interest has been told not to overreact or be alarmist. It’s now becoming clear in British Columbia that we need to be louder than ever. Time to break the glass. 

Adam Pankratz is a lecturer at the University of British Columbia’s Sauder School of Business and sits on the board of B.C.’s Public Land Use Society.