A commentary by a retired senior lawyer who served as senior legal counsel to the Province of British Columbia, advising six successive governments on Aboriginal law over more than 30 years.
I have an obvious interest in Indigenous reconciliation, and I have read the NDP election platform on this topic. I think it is so intentionally vague as to be meaningless.
I am no further ahead in understanding their real position on this important issue — but I have my suspicions.
I have been observing this government since I retired. At no time have I seen the government of the past seven years ever engage the public on their reconciliation plans and negotiations.
I think they must believe that reconciliation is not a matter for the public to have any say on.
Perhaps they believe that the 2019 passage of the Declaration on the Rights of Indigenous Peoples Act (DRIPA) legislation, which incorporates the non legally binding UN Declaration on the Rights of Indigenous Peoples (UNDRIP), has given them a broad mandate to approach reconciliation in any manner they see fit.
If that is the case, that truly concerns me. They appear to be asking British Columbians for a blank cheque on their reconciliation approach, based on no clear indication as to what they plan to do. This is completely unacceptable.
I now believe that the government actually has a secret internal strategy to radically upend land policies and land ownership, undermining British Columbians’ interests in public and private lands, all in the name of “decolonization.”
If true, when are they going to come clean about what their “decolonization” efforts are going to mean for this province and its five million citizens?
I believe any government approach to reconciliation must be crystal clear to voters. So far, I am seeing indications of a hidden plan seemingly based on what progressives term “land back” that argues that every square inch of British Columbia is “stolen Indigenous land.”
There is a pervasive “progressive” ideology in ÎÚÑ»´«Ã½ today which boldly states that all non-Indigenous Canadians are “illegitimate settlers” who are nothing more than interlopers on “stolen” Indigenous land.
It seems that Premier David Eby has embarked on a social justice effort toward a goal of returning the entire land base to what he appears to believe to be its “rightful owners,” in a manner at odds with the constitutional structure, the legal system and the international sovereign reality of ÎÚÑ»´«Ã½ and ÎÚÑ»´«Ã½
Do a majority of British Columbians actually believe that reconciliation should be based on some social justice theory that ÎÚÑ»´«Ã½ and ÎÚÑ»´«Ã½ are essentially illegitimate because of their colonial history? Or would the majority more likely believe that reconciliation should be firmly based on the foundation of Canadian constitutional law?
The clues I have seen in the past two years, including many statements from government ministers about “stolen lands” and non-Indigenous “settlers,” along with admonitions that the public should not call themselves “British Columbians” for fear of offending those who see this province as illegitimate, came clear with their attempts last spring to introduce changes to the Land Act under the government’s DRIPA legislation section 7.
Those changes were devised to put provincial public lands effectively under Indigenous control, and there was such a public backlash that government had to put them on the shelf, this being an election year.
It seems clear that those amendments and/or something much worse will be on the government’s agenda should they win re-election.
The clues to the “something worse” can be seen in the government’s embracing of Article 26 of UNDRIP.
Article 26 of UNDRIP sets out a very broad interpretation of Indigenous ownership of lands and resources that is inconsistent with what Canadian law has said about Aboriginal title.
It appears that this government has an interpretation of Article 26 that fits nicely with their apparent view that every square inch of land in this province and all the resources on that lands are “rightfully” owned by Indigenous people. This includes all public lands and your private lands as well.
Such an interpretation stands in direct contradiction to Canadian law, where court rulings have confirmed Aboriginal title over only six per cent or less of claimed territories in ÎÚÑ»´«Ã½ and have never imposed such title over private lands.
The NDP government recently made a unilateral declaration allegedly recognizing section 35 Aboriginal title over the entire Haida Gwaii archipelago. Section 35 of the Constitution Act, 1982 affirms, once proven in accordance with legal tests set out by the Supreme Court of ÎÚÑ»´«Ã½, the existing rights of Indigenous peoples.
But in my view that unilateral “Haida” declaration is based on Article 26 of UNDRIP and not on Canadian law. It seems the government has tried to disguise this incredibly extensive concept of Haida ownership as section 35 Aboriginal title under the Canadian Constitution.
All of this without a court declaration or any application of the burden of proof required to be met under section 35 that is needed to legally and constitutionally establish any such title to land. This should have either been negotiated by way of a treaty fully involving ÎÚÑ»´«Ã½ or in court.
This unilateral provincial “title” declaration is almost certainly unconstitutional in the absence of corresponding federal participation and legislation, and it extends over both public and private lands on Haida Gwaii.
While the government claims provincial authority remains in effect over those private lands now supposedly burdened by Haida Aboriginal title, there was no need to impose Aboriginal title over private lands in the first place.
Why did they do it? Presumably, the Haida demanded it. It certainly also seems to cement the government’s “every square inch” theory of Indigenous title over all of British Columbia, including private land.
Significant legal issues arise when Aboriginal title is imposed on private land, and the government’s questionable jurisdictional “carve out” does not resolve those issues, nor does it prevent the potentially huge devaluation of those lands and associated implications.
So, if the recent Haida agreement and legislation can be viewed as an Article 26 based progressive “land back” initiative, masked as section 35 Aboriginal title on Haida Gwaii, what has Eby had to say about it?
He said that what his government has done on Haida Gwaii is a “template” for what is possible in the rest of ÎÚÑ»´«Ã½ It sounds like there is a plan to blanket the entire ÎÚÑ»´«Ã½ land base, including private lands, with Aboriginal title, without involving the federal government and without engaging in proper treaty-making.
If this is the NDP’s “template” for reconciliation, then the door is open for the recognition of Indigenous claims over the entire province — without scrutiny or legal verification, and over any and all private property within those territorial claim areas.
It appears that since 2019, this government has been secretly setting the stage for a seismic shift in governance and land ownership in ÎÚÑ»´«Ã½ Apparently, the Land Act amendments were just the first step in a plan they are purposely not divulging to you before you vote.
The government’s internal and external advisers have publicly questioned the legitimacy of ÎÚÑ»´«Ã½ itself and called for an “audacious” “upending of society” to achieve “reconciliation.”
So, let’s bypass Canadian law (which to progressives is “illegitimate” after all) in favour of a non-binding UN declaration and a desire to implement a progressive “land back” ideology in ÎÚÑ»´«Ã½
The NDP are asking voters for a blank cheque on reconciliation, and it is being sought with no disclosure about their ultimate, potentially unconstitutional, intentions.
I don’t believe I would give my vote to any political party on that basis. Such a move would just encourage more secrecy and deceit about Indigenous reconciliation, and a potentially hugely divisive outcome.
