The unceded advantage: Alberta and Saskatchewan’s case for tit-for-tat federalism

Unequal foundations For more than a century after entering Confederation, British Columbia refused to sign treaties with the First Nations whose land it governs. Quebec never quite finished the job either. For many Canadians, the only visible trace of that omission appears in the dutiful insertion of the word “unceded” into a land acknowledgment, spoken with the piety of habit and the precision of etiquette, yet assumed to carry no consequence beyond the recital itself. A recent decision of the B.C. Supreme Court, Cowichan Tribes v. Canada, reframes that history as something else entirely: a reminder that the property and investment regimes of all the provinces do not rest upon the same stable ground—some upon settled treaties, others upon Indigenous claims perhaps never extinguished. The City of Richmond, a Vancouver suburb, recently warned residents that the lower court’s recognition of Aboriginal title over part of the city, if upheld, might affect ownership, taxation, and development approvals. Though narrow and under appeal, Cowichan Tribes points to where judicial reasoning may drift in provinces whose land is often described as “unceded”—never surrendered by treaty and perhaps never extinguished in law. Much of B.C., and significant parts of southern Quebec, fall within that category. By contrast, Alberta and Saskatchewan are almost entirely covered by the Numbered Treaties, and most of Ontario likewise rests upon a dense network of agreements concluded over two centuries. The property and investment foundations of certain provinces are, if one follows Cowichan’s logic, firmer by orders of magnitude than those of B.C. What follows is not an argument about how the B.C. or Canadian governments should respond to Cowichan Tribes, nor a prediction of what appellate courts will—or even should—decide. Still less is it an inquiry into the correct approach towards Aboriginal title and property rights. It is, rather, a thought-experiment for Alberta and Saskatchewan conservatives: how two provinces that believe their resource industries are habitually strangled by other provinces’ extra-constitutional vetoes might employ the logic of Aboriginal law itself to restore balance in a federation that long ago ceased to run on goodwill alone. This article prescribes no specific program so much as a habit of mind: whether Prairie provinces are prepared to think creatively in using leverage they may already have. The grammar of leverage As I argued in two earlier Hub articles, the Prairie provinces are being cast as the federation’s reluctant spoilers, hemmed in by structural vetoes they did not design. The polite fiction of Canada as a convivial dinner party conceals a federation better understood as a repeated game. B.C. and Quebec, in particular, have mastered the use of process as leverage, leaving Alberta and Saskatchewan powerless when others obstruct their economic prosperity. National goodwill, if such a thing exists, is proving no substitute for actual leverage. Prairie conservatives must ask whether their future depends instead on credible reciprocity: the recognition that fairness endures only when backed by consequence, not by sentimental appeals to unity that go unanswered. In game-theoretic terms, their most effective strategy may be tit-for-tat with forgiveness: begin cooperatively, respond proportionally to defection, and return to cooperation once others do the same. Cowichan Tribes exposes a new asymmetry within the federation: provinces that have perfected the use of process to throttle Prairie economies may now find themselves standing upon shakier legal ground. Their property and investment regimes, potentially built on unextinguished title, are newly vulnerable. The question is whether, and how, the Prairies might convert that imbalance into credible deterrence, the better to improve their own economic prospects within Canada. What follows is one way to map out a strategy. Before turning to instruments of deterrence, it is worth examining the intellectual architecture that underpins B.C.’s legal vulnerability. Within the country’s progressive elite, a thesis has long been advanced whose implications most Canadians have preferred to ignore. They argue that vast tracts of B.C. were not ceded by treaty, and that Indigenous title—explicitly recognized in the Royal Proclamation of 1763—was simply set aside when the colonial and later provincial governments declined to fund the treaty process. The omission, in their view, was both an ideological and a fiscal choice: unwilling to raise revenues, B.C. proceeded as if title had evaporated. The consequence is that property and investment rights in the province rest on a qualitatively different footing from those in the treaty-covered provinces. Consequently, where Alberta and Saskatchewan’s land regimes are anchored in clear treaties, B.C.’s remains suspended in contingency. Although many individual Canadians and businesses who benefit from status-quo land arrangements might dismiss this approach to property as woke tosh, its proponents will counter that it is simple historical and legal fact: treaties either exist or they do not, and in most of B.C., they do not. The principal policy question that follows, as they pose it, is whether to leave the courts to chart this unsettled terrain or to confront and clarify the property implications directly by negotiating modern treaties. Cowichan Tribes gives the progressive argument a real vector into the law, and Indigenous nations significant negotiating leverage over B.C. and Canada in modern treaty discussions.  For Alberta and Saskatchewan, the strategic opportunity may now lie in taking the progressive claim at its word, and insisting B.C.’s NDP government do the same. By threatening to embrace the “unceded” logic that Canada’s own intellectual class has long cultivated, the Prairies could expose the structural weakness of B.C.’s property regime and convert it into leverage of its own. It would require, on the part of Prairie conservatives, a certain reorientation of instinct: to cease regarding Aboriginal law as a danger to be contained, a field of jurisprudence whose very growth must be pruned and patrolled; and likewise to resist the opposite temptation, so eagerly indulged by progressives in the Liberals and NDP, to elevate it into a doctrine of faith, complete with its own moral liturgy and pieties; and to approach it instead as a commercial lawyer does the law of contracts or securities—as a set of instruments to be mastered and applied, an apparatus of means rather than meanings. Designing deterrence Imagine the Prairies designing a disciplined framework for reciprocity resting on two instruments of deterrence: a fiscal stance isolating B.C. and other provinces with unextinguished claims from national subsidy for their unfulfilled treaty obligations, and a legal strategy raising the cost of their obstruction against interprovincial pipeline infrastructure. Each reinforces the other: fiscal pressure generates political incentive; judicial engagement, legal risk. Default to cooperation. Continue to negotiate interprovincial pipeline projects in good faith; reciprocity has meaning only if cooperation remains the baseline. Trigger clause. When another province or Ottawa blocks Prairie exports through unreasonable regulation or delay, Alberta and Saskatchewan respond proportionally through fiscal and legal means. Obstruction that targets their constitutional right of market access would be the threshold. Fiscal component Affirm that the duty to reconcile unextinguished title rests with the Crown governing the land—and that any new treaty-making should be financed chiefly by the Crown in right of those provinces, not socialized through federal support. Fiscal responsibility should follow jurisdiction: the province that withheld settlement must bear the cost of its neglect. Reconciliation is a shared duty, but it cannot become a shared subsidy for past and ongoing provincial avoidance. Use the language of fiscal fairness as deterrence: provinces that obstruct Prairie development should not expect Prairie taxpayers to underwrite the cost of their overdue reconciliation. Judicial component Authorize the Alberta and Saskatchewan attorneys general to seek leave to intervene in appellate Indigenous-rights cases elsewhere, focusing on how consultation, accommodation, and justification duties apply maximally where title remains unextinguished. Fund archival and expert research supporting robust title claims in other provinces where historic treaties are absent or incomplete, focusing on sectors where leverage is most acute. In B.C., prioritize the Fraser delta and Lower Mainland, provincial transmission corridors, and port-adjacent Crown or municipal lands not already governed by modern treaties such as those of the Tsawwassen First Nation at Roberts Bank. Each touches core arteries of B.C.’s economy; on a preliminary view, they may do so without directly impeding Alberta’s interprovincial export infrastructure. In Quebec, the same logic could apply to corridors and peri-urban lands south of the James Bay and Northern Quebec Agreement territory: hydro rights-of-way, urban peripheries, and internal infrastructure, rather than infrastructure dedicated to interprovincial trade. Courts can hardly be expected to decide what has never been documented; historical research, which allows for evidence to be gathered in the right places, can transmute uncertainty into leverage. For added emphasis, insist that provinces incorporating the United Nations Declaration on the Rights of Indigenous Peoples into domestic law—most notably B.C.—have voluntarily accepted higher interpretive standards. Having chosen the burden, they must bear it. In strategic terms, the objective is not to implement these measures but to create a credible commitment, by championing a maximalist interpretation of Crown obligations in unextinguished territories, that raises the expected cost of defection for rival provinces and induces them to revise their beliefs about future payoffs. If Alberta and Saskatchewan back their signal with observable, costly actions—funding archival research, intervening in key cases, supporting amici, or passing domestic legislation that frames the issue publicly—B.C. and Ottawa will, once they move past denial and anger, treat the threat as a binding trigger strategy rather than an idle threat; as a result, the repeated-game dynamics change, the expected equilibrium shifts, and cooperation may become the individually rational path for government actors in the federation that previously defected. Within B.C., such a stance would be understood for what it is: a brazen and direct challenge to the legal underpinnings of its property regime. If appellate courts were to affirm even part of Cowichan Tribes, the shock would ripple through municipal governance, taxation, and real-estate markets. Reciprocity and restraint Once cooperation resumes, the Prairies stand down. The aim is not confrontation but stability—a predictable expectation that cooperation is rewarded and defection deterred. To remind those who govern on unextinguished title that they do so upon legally unstable ground; that the Prairies, by contrast, bound as they are by settled treaties, are far less exposed to that uncertainty. Through credible reciprocity, Alberta and Saskatchewan can acquire what they have long lacked—a predictable grammar of power in a federation that too often rewards extra-constitutional obstruction when dressed up in the habiliments of progressive principles. Against misunderstanding Some will say this weaponizes reconciliation. In truth, Alberta and Saskatchewan already bear the costs of consultation where their obligations are clear; they merely propose that others bear theirs where they are not—an argument that, ironically, would make perfect sense to the Marxists and critical legal studies crowd in B.C., for whom the law is nothing if not a tool of power. Others will question the politics. Would conservative Prairie governments really align, however indirectly, with Indigenous nations advancing novel title claims? Coalitions are seldom born of affection. They arise from necessity and require all sides to be capable of exercising a certain tactical patience. Shared interests need not imply shared ideology. If Alberta and Saskatchewan never learn to seek leverage, they will never possess it, and their position in the federation will remain subordinate. Some conservatives will object that Aboriginal title itself undermines the legal order and should therefore be resisted. But title exists whether one approves or not; the Supreme Court has entrenched it. Why not just use it rather than only be governed by it? A bad law, after all, is still the law. A further worry is that such an approach might fracture the national conservative coalition. However, the purpose of deterrence is to render its own use unnecessary. It works not through punishment but through altered payoffs. And, here, the point is to move closer towards an equilibrium in which it is easier to build shared infrastructure that binds regional economies—something all national conservatives support. Finally, some will argue the threat lacks credibility because a stronger doctrine of Aboriginal title would raise Alberta’s own costs. It is certainly true that Alberta would feel that indirectly—in higher tolls and slower timelines—but B.C. would feel it directly and far more severely. For Alberta, the cost is friction; for B.C., real fragility. Alberta’s task is not to absorb the burden of the provinces that govern on “unceded” land but to imagine creative ways to convert it into deterrence. The asymmetry is a source of power; wielded judiciously, it restores balance. The rule of consequence Alberta and Saskatchewan could express it thus: “We remain open to cooperation on energy and infrastructure. But in a federation where others use extra-constitutional legal and regulatory means to block our projects, we will ensure that obstruction carries its own costs. The instruments may differ, but the principle is constant: cooperation will be met in kind; defection will bring consequences.” For more than a century, the Prairies have lived under the treaties they signed; B.C. and parts of Quebec have lived off the ones they refused. That difference is no longer historical: it now may define who bears the greater legal risk in the next chapter of the Canadian story. The Prairies did not design the federation’s expanding web of vetoes, but they are trapped within it. If persuasion no longer works—and it does not—then, for their own sake, reciprocity must. A credible willingness to act, however sparingly, is what gives that logic force. To a great extent, Canada now operates as a set of repeated games among overlapping sovereignties: provincial, federal, and Indigenous. Its stability does not depend upon goodwill but upon symmetry. Fairness endures not through sentiment but through equilibrium—when cooperation, not obstruction, becomes the rational choice.