BC NDP pushes ‘inherent Indigenous title’ over all of BC, circumventing Canadian law
By Geoffrey Moyse
The BC NDP government has crafted an internal strategy to radically reshape the province’s land policies, undermining British Columbians’ interests in public and private lands, all in the name of addressing so-called “colonial” legacies.
Recently, NDP ministers have been outspoken about Indigenous peoples as the “rightful owners of the land,” seemingly disregarding Canadian constitutional law on Aboriginal title. This is not an oversight; it is entirely intentional.
In 2019, the BC NDP government incorporated the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into provincial legislation known as the Declaration on the Rights of Indigenous Peoples Act (DRIPA). Although UNDRIP is a non-binding international declaration, it has been interpreted and applied within provincial policy in a way that challenges existing legal norms.
Many within academia and the current BC government view Canada’s legal framework governing Aboriginal title as illegitimate. These individuals, including some ministers, often refer to non-Indigenous British Columbians as mere “settlers” on what they describe as “Indigenous lands.”
Article 26 of UNDRIP sets out a broad interpretation of Indigenous ownership of lands and resources that can be described as “inherent Indigenous title” that blanket the whole of British Columbia – overlapping claimed traditional territories, as well as public and private lands. However, this interpretation directly contradicts Canadian law, where court rulings have only confirmed Aboriginal title on roughly six percent of claimed territories in BC.
The government’s too-clever-by-half recognition of this concept of “inherent Indigenous title” exceeds the boundaries of Canadian law, making it unconstitutional.
The NDP government recently made a unilateral declaration recognizing section 35 Aboriginal title over the entire Haida Gwaii archipelago. Section 35 of the Canadian Constitution affirms the existing rights of Indigenous peoples. However, the NDP’s declaration resembles the “inherent Indigenous title” described in UNDRIP, and it appears to disguise this broader concept as section 35 Aboriginal title under Canadian law, without requiring the usual burden of proof normally needed to establish such rights.
This unilateral provincial “title” declaration is unconstitutional in the absence of corresponding federal legislation and extends to both public and private lands on Haida Gwaii.
While the government claims there is a “carve out” for provincial authority to remain in effect over private lands now burdened by Haida Aboriginal title, significant legal issues arise. The so-called “carve-out” could easily be revoked, leaving those private lands under Haida control and subject to Haida law.
This is a deceitful and likely unlawful application of the concept of “inherent Indigenous title,” masked as section 35 Aboriginal title, on Haida Gwaii.
By favouring the concept of “inherent Indigenous title” over the existing legal framework as defined by Canadian constitutional law, the NDP’s radical approach to reconciliation opens the door to recognizing Indigenous claims throughout the entire province – without scrutiny or legal verification. As demonstrated in Haida Gwaii, this model allows for recognition of Indigenous title over 100 percent of claimed lands, including private property.
This is, apparently, the Premier’s “template” for the rest of BC. Consider the profound implications of this approach.
Many will recall the controversy surrounding the proposed amendments to the Land Act in early 2024. Those changes, rooted in section 7 of DRIPA, would authorize the government to enter agreements with Indigenous governing bodies, granting them either joint decision-making power or the ability to veto government decisions.
The government’s belief in ubiquitous “inherent Indigenous title” justifies this proposed transfer of authority and control over BC’s lands and resources to Indigenous governments. This shift is based on Articles 18, 26, and 32 of UNDRIP.
While the NDP government ultimately paused the proposed amendments to the BC Land Act, which would have effectively removed its authority over public land use and marginalized the land interests of the majority of British Columbians, it is expected that a re-elected NDP government will quickly reintroduce these changes.
The public remains largely unaware of how extensively the government plans to implement joint decision-making or Indigenous veto power. Once the government accepts “inherent Indigenous title” as a reality across the province, the application of these powers could extend to all of BC, just as it has on Haida Gwaii.
The BC NDP government is pursuing a hidden agenda to fundamentally alter land ownership and control throughout the province. By invoking Article 26 of UNDRIP and advancing the concept of “inherent Indigenous title” over every inch of BC – including private lands – it is setting the stage for a seismic shift in governance. Given that the government’s advisors question the legitimacy of Canada itself, it is no surprise that they would opt to bypass Canadian law in favour of a non-binding UN declaration.
Take a moment to think about this – the province as we know it is on the brink of irreversible transformation.
Geoffrey S. Moyse is a retired senior lawyer who served as legal counsel to the Province of BC, advising six successive governments on Aboriginal law over more than 30 years.
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