Skip to Content Subscribe Our Offers My Account Manage My Subscriptions FAQ Newsletters Canada Canadian True Crime Canadian Politics Health World Israel & Middle East Financial Post NP Comment Longreads Puzzmo Diversions Comics NP News Quiz New York Times Crossword Horoscopes Life Eating & Drinking Style Sponsored Play for Ontario Travel Travel Canada Travel USA Travel International Cruises Travel Essentials Culture Books Celebrity Movies Music Theatre Television Business Essentials Advice Lives Told Tails Told Shopping Buy Canadian Home Living Outdoor Living Tech Style & Beauty Kitchen & Dining Personal Care Entertainment & Hobbies Gift Guide Travel Guide Deals Savings National Post Store More Sports Hockey Baseball Basketball Football Soccer Golf Tennis Driving Vehicle Research Reviews News Gear Guide Obituaries Place an Obituary Place an In Memoriam Classifieds Place an Ad Celebrations Working Business Ads Archives Healthing Epaper Manage Print Subscription Profile Settings My Subscriptions Saved Articles My Offers Newsletters Customer Service FAQ Newsletters Canada World Financial Post NP Comment Longreads Puzzmo Diversions Life Shopping Epaper Manage Print Subscription HomeNP CommentJamie Sarkonak: Canadian media ate up false news that Aboriginal title was no threatThe Canadian Press reported that the Supreme Court 'upheld' a 'ruling' that Aboriginal title can't apply to private property. That was wrong You can save this article by registering for free here. Or sign-in if you have an account.The Wolastoqey Nation is claiming Aboriginal title based on where it believes Wolastoqey members historically used and occupied the territory. Photo by BRUNSWICK NEWS ARCHIVESOn 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.Enjoy the latest local, national and international news.Exclusive articles by Conrad Black, Barbara Kay and others. Plus, special edition NP Platformed and First Reading newsletters and virtual events.Unlimited online access to National Post.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles including the New York Times Crossword.Support local journalism.Enjoy the latest local, national and international news.Exclusive articles by Conrad Black, Barbara Kay and others. Plus, special edition NP Platformed and First Reading newsletters and virtual events.Unlimited online access to National Post.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles including the New York Times Crossword.Support local journalism.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one account.Share your thoughts and join the conversation in the comments.Enjoy additional articles per month.Get email updates from your favourite authors.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one accountShare your thoughts and join the conversation in the commentsEnjoy additional articles per monthGet email updates from your favourite authorsSign In or Create an AccountorWhat 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.This newsletter from NP Comment tackles the topics you care about. (Subscriber-exclusive edition on Fridays)By signing up you consent to receive the above newsletter from Postmedia Network Inc.We encountered an issue signing you up. Please try againThe 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.There was much applause for the Supreme Court for protecting people’s homes — which it didn’t do — and much gloating from those who insist that Aboriginal title poses no threat to property rights. This of course is not true: B.C. is still bound by the B.C. Supreme Court’s Cowichan Tribes decision from August, which paradoxically ruled that Indigenous groups and private owners can both somehow have exclusive ownership rights over the same piece of land, in part because some colonial officers a century ago didn’t consult the Indigenous locals to the modern judge’s standards.And so, the matter remains unresolved. The University of Saskatchewan’s resident Aboriginal law expert, Dwight Newman, gave his assessment on Friday: “The outcome in the Wolastoqey case (out of New Brunswick), then, is moderately positive for those hoping to see a change in the Cowichan result. But only moderately so. British Columbia’s courts could yet go a different path than the New Brunswick court did, and then the Supreme Court of Canada may have to look at everything again.”Plus, if the Supreme Court one day went with the milder version of Aboriginal title that New Brunswick judges have developed, but even this would be a disaster because of the sheer cost it would impose on government. If you think government’s finances are bad now, just wait until a court slaps down a $100 billion bill for “stolen” land. A map showing the Wolastoqey Nation’s title claim in New Brunswick. (Brunswick News) Photo by Brunswick NewsNevertheless, the Canadian Press didn’t acknowledge any of this. Later on Thursday, it quietly issued a new version of the story with no indication that a false report had ever been made. That would be fine if it were a minor typo, but not for a substantive problem that has been widely passed off as true.The new headline mischaracterized the New Brunswick Court of Appeal decision: “Ruling against Aboriginal title on private land is allowed to stand by high court.” The New Brunswick case didn’t preclude Aboriginal title from existing on private property. Reinforcing the illusion was the use of the word “allowed” — when judges decide in favour of the party who initiated the appeal, that is called “allowing the appeal.” This phrase appears thousands of times in the Canadian court record.The body of the new corrected-not-corrected Canadian Press story makes these same grievous errors, referring to a “decision allowed by the Supreme Court of Canada to stand” and “the Supreme Court of Canada’s ruling,” both of which falsely tell the reader that the First Nation won at the top court.Most media outlets that ran the factually wrong first version quietly updated to the still-wrong second version. Some left the original misleading headline on their social media. APTN took the old version down, but didn’t acknowledge the mistakes. And why would anyone question it: Canadian Press has the appearance of knowing what it’s talking about, and a reputable publication would retract a story it got ass-backwards, right?Both of the journalists responsible for this misreport know better. In February, co-author Nono Shen interviewed “misinformation experts” for a story about the unfortunate tendency for incorrect information to spread online in developing situations, a theme she’s covered multipletimes, ashas co-author Wolfgang Depner. But it’s not all up to them: the Canadian Press should have stepped in and corrected the public record. That’s what its policies call for, anyway.Ultimately, this means more ammo in the sling for those who continue to insist that the growing threat that is Aboriginal title isn’t a problem, for they can now point to an incorrect news story to show that your concerns over private property are paranoid and irrational. It’s a small political gain for the feds and provinces like B.C., who have been recognizing title claims without knowing the consequences, and preventing their lawyers from fully defending the public interest when Indigenous claims go to court. The public is catching on, but some current-event confusion can slow that down.The actual facts of the matter haven’t changed, however. Private property is still at stake — and the Canadian Press can’t be trusted to report on it.National Post Get the latest from Jamie Sarkonak straight to your inbox Join the Conversation This website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.