In the late 1990s and early 2000s, when I covered treaty negotiations on Vancouver Island for the Nanaimo Daily News, provincial negotiators and government officials took great pains to reassure the press and public that private lands and provincial parks were not on the table for treaty settlements.
Now, under the David Eby government and DRIPA, both are on the table.
As was reported earlier this week, two provincial parks could become treaty land in settlements with the Songhees and T’Sou-ke First Nations. And Joffre Lakes provincial park continues to be a sore point.
For the last few years, it has been closed to the public for periods of time to allow the Lilwat Nation exclusive access and use, despite the fact that Lilwat never joined the B.C. Treaty negotiations process or otherwise demonstrated rights or title to the park.
“Unless they’ve proven Aboriginal title, there’s nothing in the constitution that provides for the exclusive use of public land,” says Warren Mirko, executive director for the Public Land Use Society.
“Can you deny access to public land based on somebody’s otherwise protected characteristic under the Charter of Rights and Freedoms—like their race, gender, ancestry, etcetera?” Mirko asks. “And the answer, on its face, is no.”
The periodic closure of Joffre Lakes to the public is just one of a growing number of causes the Public Land Use Society has taken up over the last year and a half, since its formation. Almost all of them relate to the Eby government’s DRIPA-informed Aboriginal reconciliation agenda.
Public trust in reconciliation waning
There has long been broad public support in B.C. for reconciliation and settling land claims. But that support is starting to wane, as David Eby is increasingly looking like a radical bent on giving away the Crown jewels, although First Nations might argue that they are not being given away so much as given back.
One of the biggest concerns over the Eby government’s reconciliation agenda has been the secrecy with which various agreements are negotiated.
Negotiations under the B.C. Treaty process, initially at least, had some transparency and allowed for public input.
There were Regional Advisory Committees (RAC) and Treaty Advisory Committee (TAC), which were made up of local and regional government officials.
There seems to be none of this sort of transparency or opportunity for stakeholder input in the bilateral land claims agreements that the Eby government has been negotiating with First Nations.
Another concern with the Eby government’s approach to reconciliation is that it no longer seems to require Aboriginal title to be tested and proven.
Under DRIPA, the government just appears to be assuming all Aboriginal title claims to be valid – no test required.
This may be an abdication of duty to the Crown. The government, after all, has a fiduciary duty to represent and defend the interests of the Crown, which is to say the general public.
“Is the government acting in the best interests of the Crown and the population, or is it doing things to undermine the legal and territorial integrity of British Columbia?” asks Aboriginal law expert Robin Junger. “It’s a real question.”
The Eby government’s approach to reconciliation was recently described as “an aggressive NDP ‘land back’ policy agenda” by Karen Restoule, who is Ojibwe, an expert in Aboriginal affairs and senior fellow with the Macdonald-Laurier Institute.
In an exhaustive 6,000-word analysis of the B.C. NDP government reconciliation policies in The Hub, Restoule writes:
“While some would describe the Horgan/Eby NDP governments as ‘pioneering’ as it relates to reconciling with Indigenous peoples, many would characterize the NDP’s leadership on this front as chaotic, secretive, damaging to Indigenous reconciliation, and—ultimately—having significantly increased legal uncertainty across the province.”
The test for title
The Declaration on the Rights of Indigenous Peoples Act (DRIPA) has changed the government’s approach to land claims in a fundamental way.
As per Section 26 of DRIPA, the Eby government appears to have completely abandoned the test for Aboriginal title established by the Supreme Court of Canada.
The test for Aboriginal title, as per Canadian law, is proving exclusive and continuous occupancy and use.
In 2014, the Supreme Court of Canada ruled that the Tsilhqot’in Nation had passed this test and proven Aboriginal title over about 1,900 square kilometres of their core traditional territory.
That’s less than 5 per cent of the total traditional Tsilhqot’in traditional territory.
Had the Tsilhqot’in just waited a few years for the NDP and DRIPA to come along, they might have received title to all 88,000 square kilometres of their traditional territory, if the Haida Recognition Act is anything to go by.
Haida Gwaii could be said to be a unique case. Unlike almost everywhere else in B.C., there are no overlapping claims. The Haida would have indeed had a strong case, had the issue of title been decided by the courts.
But no court would have awarded title to the entirety of Haida Gwaii, says Geoffrey Moyse, a former legal advisor for the B.C. attorney general and now an advisor for the Public Land Use Society (PLUS).
At best, the Haida would likely have gained title over traditional village and other sites about one kilometre in from the foreshore, Moyse said.
Moyse and Mirko fear that the Eby government will soon announce a land use agreement with the Tahltan that uses the Haida agreement as a template.
“There’s no way in hell the Haida would have ever been able to prove Aboriginal title under Section 35 to the entire archipelago,” Moyse said. “That was a total political giveaway.
“And the problem was the premier at the time said this is a template of the art of the possible. And everybody took that to be, ‘Oh, you’re going to do this again and again and again.’
“All of the indications seem to be they’re getting ready to do a big title deal with Tahltan.”
The great fear there is that Aboriginal title may include subsurface mineral rights. Tahtlan territory covers much of the Golden Triangle – B.C.’s richest mineral deposits.
It’s a valid concern – one that normally would be discussed in the open with stakeholders and the public, if the negotiations were being conducted as part of the B.C. Treaty process.
According to the Vancouver Sun, a spokesperson for Indigenous Relations and Reconciliation said there is no mandate to enter into formal Aboriginal title negotiations with the Tahltan.
But this kind of speculation might not be occurring in the first place if there was more transparency around the province’s negotiations with First Nations.
“Negotiated agreements should bring about certainty,” Restoule notes in her piece.
“But in B.C., the utilization of recently designed ‘reconciliation’ agreements and bilateral talks behind closed doors has increased uncertainty. They’ve been created in the absence of a clearly defined authoritative policy framework and with little to no public transparency.”
In its zeal to settle rights and title issues, the Eby government seems to be abdicating its obligation to defend the wider interests of the Crown, which is to say the general public.
Getting back to basics
It is only a matter of time, I think, before we start to see legal challenges to the Eby government’s reconciliation efforts, on the basis that they conflict with the constitutional rights of non-Aboriginal citizens.
Moyse says the provincial and federal governments need to get back to the basics – tripartite treaty negotiations. But that may require a change of government in B.C. and the removal of DRIPA from the treaty-making process.
“I would say to an incoming government: get off your butts and get the treaty process operating efficiently,” Moyse said. “Get everybody you can at the treaty negotiations table.”
Nelson Bennett’s column appears weekly at Resource Works News. Contact him at [email protected].
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