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BC government’s unilateral approach to establishing Aboriginal title over lands raises some significant concerns

By Geoffrey S. Moyse

The BC government’s plan to unilaterally establish Aboriginal title over lands on Haida Gwaii and potentially across the province – without legal proof, public consultation, or consideration of constitutional issues – has significant implications for public lands and lacks democratic legitimacy. Public backlash, fortunately, has temporarily halted the proposed Land Act amendments that would allow joint decision-making on Crown lands.

However, with an election approaching, the government is rushing potentially unconstitutional legislation to grant unilateral Haida ownership over all lands on Haida Gwaii. This plan, proposed as a provincial template, should raise serious alarm bells for British Columbians due to its far-reaching implications.

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First, regarding Haida Gwaii, on what basis has the government determined the actual legal strength of the Haida’s title claim? No court has ever declared the Haida’s claim to the entirety of Haida Gwaii as “very strong,” despite what the government’s messaging implies. This misleading information raises concerns.

Beyond the issue of the strength of the Haida claims, there’s also the significant legal question of whether the Canadian constitution even gives a province the right to legislate in this way. The proposed Haida legislation attempts to bypass federal jurisdiction by framing the issue as solely about land.

This legislation is fundamentally about Aboriginal title, and there is no constitutional authority that gives a province a unilateral right to legislate an Aboriginal title over land under section 35 of the Constitution Act, 1982.

The BC government believes it can unilaterally create a constitutionally protected Aboriginal title, even over private lands on Haida Gwaii, while simultaneously claiming that these private lands won’t be legally affected. This seems implausible and likely does not work. The supposed protection of private land relies on mere contracts with the Haida and unilateral provincial legislation that attempts to both restrict and declare Haida Aboriginal title at the same time. This contradictory approach raises significant legal and practical concerns.

Tom Isaac, Chair of the Aboriginal Law Group, has already noted that the BC government’s plan is likely unconstitutional.

Is it the view of this government that all First Nations in BC have a valid legal claim to Aboriginal title over the entirety of their claimed territories? Does this government plan to declare the territorial title claims of every BC First Nation to be “very strong” without any verification or proof, as they are doing with the Haida? Will such determinations be based on Canadian law or the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)?

Without consulting British Columbians, the government is now considering using the Haida template to unilaterally establish and permanently enshrine Aboriginal title over the vast areas of the province that the Supreme Court of Canada has identified as potentially subject to such title.

Jack Woodward, a practicing lawyer and expert in Indigenous law, has pointed out that even after excluding overlapping claims, approximately 50 percent of the Crown land base in the province is still likely under potential Aboriginal title.

Removing these vast areas from Crown land status would mean they are no longer available to BC residents for recreational activities or to support the provincial economy.

This loss of Crown land would occur without:

  • public consultation;
  • requirement for evidence of actual historical occupation by the First Nations in question before a court of law;
  • consideration of the test set down by the Supreme Court of Canada for proving an Aboriginal title to land;
  • indication of support from Canada for this template and
  • a clear mandate from the electorate in the last election for this approach.

Reconciliation isn’t a right a government can engineer through secret bilateral agreements. To be democratically legitimate, it requires public understanding and support.

Geoffrey S. Moyse KC is a retired senior lawyer who served as legal counsel to the Province of BC, advising six successive governments on Aboriginal law matters over more than 30 years.

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