Anxiety about the threat to fee simple private property posed by Aboriginal rights is so deep in British Columbia that Green MLA Rob Botterell, Saanich North and the Islands, was able to draw more than 100 people to a mid-afternoon public meeting Saturday, a sunny long-weekend Saturday in the middle of Stanley Cup playoffs.
Yet still they came to a gracious Presbyterian church tucked next to Victoria International Airport: three former provincial attorneys general; a former Green Party leader; Grand Chief Ed John, a key figure in the creation of the Declaration on the Rights of Indigenous Peoples Act; Wendy Grant-John, three times Chief of the Musqueam First Nation; Terry Glavin, award-winning author and weekly columnist for the National Post; and scores more.
It was more than an hour into the collegial discussion among panellists Geoff Plant, B.C. attorney general from 2001 to 2005; Andrew Petter, former law professor and attorney general; and Adam Olsen, a member of the Tsartlip First Nation (W̱JOȽEȽP) and former BC Green Party leader, that Botterell sprung the key question.
“Is my private property at risk as a result of the Cowichan decision? Is it a threat to my property on Pender Island? Is it a threat to your property wherever you live? Should I be worried?”
The answer from the eminent panel was categorical.
“No, I don’t think people should be worried,” said Plant, attorney general under Premier Gordon Campbell.
“If you, like me, live in a house in a neighbourhood in a city, some nice tree growing in front of it, you’re not at risk. If you’re planning a $25-billion mining project in northeastern British Columbia, then you better sit and do some work about who the Indigenous people are in that territory and find out how you can engage with them.
“There is nothing in Cowichan that is intended to unsettle what I’ll call ordinary private property ownership in British Columbia.”
“I don’t think that private property is at all at risk as a result of this decision,” Petter agreed. “I think the court will ultimately decide a way forward that will both respect Aboriginal title and respect fee simple and the two will, in fact, coexist.”
If silence implies consent, former NDP attorney general Murray Rankin, a member of the audience, agreed with his two esteemed colleagues.
That’s it? British Columbia has had a 10-month meltdown over the Cowichan decision for nothing?
So it would seem.
Botterell’s public meeting violated every norm of contemporary politics. The tone was non-partisan, the discussion was respectful and free-wheeling, and the time and place required a serious commitment. The panellists gave detailed and carefully considered remarks, Olsen leading off with a quick history of Indigenous people’s long legal struggle on the land question.
The church pews were crowded, with many from a Saanich-based network of tech business owners whose startups have spun off the work of the nearby Patricia Bay Institute of Ocean Sciences.
Clearly, there’s a public hunger for serious discussion about reconciliation with First Nations.
To be clear, Plant and Petter also agreed the Cowichan decision had established that the Cowichan had Aboriginal title to the site of their former summer village on the Fraser River, in what is now Richmond, including fee simple private property on that land. (The land had been set aside for the Cowichan but was then wrongfully subdivided and sold by provincial land commissioner R.C. Moody.)
While the Cowichan had made no claim on the private properties on the Richmond site, the judgment acknowledged that further rulings would be required to clarify their status.
It was this comment, amplified in letters to landowners by Richmond Mayor Malcolm Brodie, that set off one of the worst public controversies over Indigenous rights in this province since Campbell’s notorious 2002 referendum on the treaty process. In the hands of Conservative Party of BC leadership candidates, the Cowichan decision became evidence of “David Eby’s radical land-back agenda.”
Even some of the most vocal legal critics of the Cowichan decision say, as do Plant and Petter, that “reconciliation requires a remedy that achieves fairness between fee simple owners and Aboriginal title claimants.” Only the Supreme Court of Canada can provide that remedy.
That statement by Thomas Isaac, a highly regarded lawyer who says the Cowichan decision “has upended the province’s land title system and certainty around private property ownership in B.C.,” sounds remarkably similar to Plant and Petter.
The Cowichan decision, which relied on Section 35 of the Constitution, will make its way to the Supreme Court of Canada, where fee simple private property will finally have its day in court.
How will that turn out?
Petter is a supporter of the “school of legal realism,” which says that if you want to understand “how the law is going to evolve, you really have to understand the social context and the attitudes and how judges are going to approach this…. I don’t think there’s a chance in the world that the judges are going to hold the system that establishes fee simple land is somehow undermined by Aboriginal title.”
“Judges read the newspapers, just like we do,” added Plant. “They know how important this issue is. I would be startled if the Court of Appeal did not find a way to provide some clarity on this point.”
Yet this clarity is years away, probably well after the next provincial election. In the meantime, the Court of Appeal’s December verdict in the Gitxaała case, which found that the province has violated the principles of the United Nations Declaration on the Rights of Indigenous People in its failure to update mining legislation, has compounded the political crisis.
Premier David Eby’s threat to amend or suspend elements of the province’s Declaration on the Rights of Indigenous Peoples Act, or DRIPA, to neutralize the risk of further litigation triggered the biggest mobilization against the government by First Nations since the campaign against Campbell’s treaty referendum.
Eby appeared to be on the brink of losing a key vote to suspend elements of DRIPA — a vote he briefly termed a confidence matter — when he stepped back from the brink in late April.
On this point, Olsen was unforgiving. Rather than consult with First Nations Chiefs, “the rights-holding leaders of this province,” Olsen said, “the first stop was to the media, where the politicians lit their hair on fire about the threat that they had determined in the car ride from wherever they were to wherever they needed to be for that press conference.” He was clearly referring to Eby.
“There is a massive litigation risk,” Olsen continued. “It already exists. The fact that a lot of the land claims and land issues have been unresolved [means] all of those could potentially become part of a litigation risk.
“There’s this perspective… that if we repeal DRIPA, then all of a sudden, the litigation risk goes away,” he said. “I would say the litigation risk dramatically increases when you remove the tool that’s supposed to be there to help you have effective [negotiation] tables.”
Where does all this leave the Eby administration?
In the remaining seven days of the spring legislative session, the government could pass treaty legislation for the K’ómoks and the Kitselas First Nations, although both treaties have come under heavy fire from neighbouring nations with overlapping claims. Alternatively, one or both of the treaties could be dealt with in a planned fall session.
In the meantime, the government is ostensibly engaged in further discussions with First Nations leaders about the future of DRIPA. So far, there has been no public sign of such discussions.
Practically speaking, there’s nothing Eby can do about Cowichan except wait for the ponderous appeals process to complete its long journey. He tried to amend or suspend DRIPA and failed. He has agreed with those who say private property may be at risk — although it isn’t — and insisted there is a major litigation risk arising from Gitxaała, although others say there is not.
“Let’s face it, we are all here to stay,” concluded Botterell, repeating the famous line by Chief Justice Antonio Lamer in the Supreme Court ruling upholding the Delgamuukw decision.
It’s beginning to look like fee simple private property is here to stay, and DRIPA as well, no matter what Conservative Party of BC leadership candidates may say. ![[Tyee]](https://www.thetyee.ca/design-article.thetyee.ca/ui/img/yellowblob.png){kind=small}