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There’s a compelling case to be made in defence of the landmark agreement signed recently between the B.C. government and the Haida Nation, which formally recognizes Haida’s Aboriginal title. But can the NDP make that case to a broader public, already suspicious of botched First Nations reforms and stuck in a hyper-partisan spin tornado 29 weeks before a provincial election?
Probably not.
Which is why the government should reconsider its stated intention to jam the important, trailblazing, nuanced enabling legislation into the last half of the last legislative session of its mandate, with little warning it was coming.
To backstop this poor decision, New Democrats have deployed their usual tricks—accusing anyone who has a legitimate concern about the scope of the legislation as spreading “misinformation” and coming within a hair’s breadth of insinuating its critics are a bunch of ignorant racists.
Contentious legislation accompanied by nothing more than sanctimonious lecturing and ad hominem attacks is a losing combination, as the NDP’s climbdown over Indigenous co-governance of Crown Land in February’s Land Act showed.
And yet, here we are again.
The agreement formally recognizes the Haida Nation’s title over more than 10,000 square kilometres of Haida Gwaii, but with the government assurance that privately held lands, under B.C.’s existing fee simple title ownership system, will be protected. It sets out an expected two-year transition period where the province and Haida will transition from shared decision-making into something new, led by Haida.
There is ample legal rationale for the move, as courts for more than 60 years have slowly advanced First Nations rights to title over their traditional lands.
Doug White, Premier David Eby’s special advisor on Indigenous reconciliation, can eloquently chart out the almost 100-year evolution of the issue, from the Douglas Treaty through to landmark court decisions involving Calder, Delgamuukw and Tsilhqot’in. More recently, the Haida Nation is set to take the provincial and federal governments to court over title issues, starting in 2026.
“You get generation after generation of First Nations standing up seeking to have these issues resolved,” said White. “And you have judges saying consistently please go sort this out.”
But the legal community remains divided over whether that’s what the agreement actually does.
“Through the agreement, the province has fashioned a version of Aboriginal title which is unknown at law, creates considerable uncertainty, and does not promote the reconciliation of Aboriginal and non-Aboriginal interests inherent in section 35 of the Constitution Act, 1982,” wrote law firm Cassels.
“In reality, the agreement does not create the certainty the province seeks and instead raises significant questions which remain unanswered.”
Law firm Bennett Jones had a different view.
“The modern context for Aboriginal title includes private ownership of lands within larger areas to which Aboriginal title attaches,” it wrote.
“Based on the draft agreement, Haida Nation and B.C. recognize that reconciliation is served by accepting that third parties should be entitled to rely on the apparent validity of government acts such as land patents providing for fee simple tenure even if those government acts may have constituted unconstitutional limitations on Aboriginal rights.”
White dismissed the split view.
“If you get 10 lawyers in a room it’s not going to be unusual to have 10 different points of view on law,” he said.
Yet that presents a huge problem for the NDP. In the absence of clear legal backstop, it’s wide open to the criticism of uncertainty.
“By advancing an agreement that stretches beyond the constitution and established legal precedents, this government is fostering a climate of uncertainty that will deter investment and destabilize the land base across our province,” BC United leader Kevin Falcon and critic Michael Lee said in a recent joint statement.
“The NDP’s approach, shrouded in secrecy and lacking broad public consultation, is not in keeping with the spirit of reconciliation or the public interest, which demands open, honest dialogue and a commitment to finding solutions that respect the interests of all parties involved.
“Instead, they have chosen to disregard the nuanced balance of rights and responsibilities that form the bedrock of our legal system.”
Much like during the Land Act reforms, the BC NDP must look internally to identify the shortcomings in how this was handled.
There are many things the over-staffed, high-priced, hyper-partisan army of B.C. government communications people could have done to mitigate this—intentions papers, public consultation sessions, online forums, advertisements, public events and exposure bills in the house.
It could even have dedicated one of the dozens of town halls in Premier Eby’s schedule to a frank conversation about one the most important Indigenous reforms to title rights in the province’s history. If anyone could handle explaining the legalities of the Haida agreement, it is the premier, a lawyer himself.
Privately, New Democrats will tell you they can’t do regular engagement on Indigenous reforms because of the risk of British Columbians will say racist things about Indigenous rights. That’s a sad commentary on the province.
But whipsawing the other way, to hide legislation until the last minute and then try to ram it into law before anyone catches on has been shown to infuriate the broader population, especially just before an election.
Caught in the middle, again, are Indigenous communities. They come to the table with the province in good faith, help craft policy-rich reforms, and then get let down by the rollout (or lack thereof) drafted by NDP strategists.
“Rather than seeking to deny First Nations our most basic human rights, in clear violation of domestic and international law, we encourage all British Columbians to stand with us in celebrating the current provincial government and the Haida Nation’s tremendous accomplishment,” the First Nations Leadership Council said in a statement.
That should absolutely be the goal.
But it might be better accomplished by parking this legislation until after the election.
Rob Shaw has spent more than 16 years covering B.C. politics, now reporting for CHEK News and writing for Glacier Media. He is the co-author of the national bestselling book A Matter of Confidence, host of the weekly podcast Political Capital, and a regular guest on CBC Radio.
