“The secret of freedom lies in educating people, whereas the secret of tyranny is in keeping them ignorant.”
–Maximilien Robespierre
Famous French lawyer Maximilien Robespierre understood clearly the tyrannical dangers of a government that supresses the truth in pursuit of a secret agenda.
We need look no further than B.C. for a living example.
Successive precedent-setting agreements between the provincial government and First Nations have been covertly negotiated, without public knowledge until a deal is reached or leaked to the media. Employing a trojan horse-type political strategy, the agreements are downplayed as “reconciliation” reparations, all the while advancing the BC NDP government’s far-left, “land back” ideological agenda – based on the premise that all Canadian land was stolen from Indigenous people and must be returned.
Certainly, Premier David Eby’s government seems bent on finalizing as many so-called “reconciliation” agreements, as quickly as possible, in the hopes, perhaps, they will be an irreversible before voters are any the wiser.
The reconciliation agreements have taken a myriad of forms, from majority ownership in resource development projects to joint and sole decision-making, along with Aboriginal title over Crown and private land, and “essentially title”over the provincial parks.
The most prominent reconciliation agreement recognizes Aboriginal title on the Haida Nation’s claim over the entirety of the lands and waters of Haida Gwaii (including all Crown land, and private property with some legally suspect protections). This outcome of recognizing title to the entire claimed territory bears no relationship whatsoever to existing Canadian law with respect to proving Aboriginal title under section 35 of the Constitution Act, 1982.
Taken as a whole, the agreements give scarce assurance the public’s interests in Crown land and protection of their private property rights are being adequately defended.
BC government’s vision of reconciliation is flawed
Most British Columbians probably never imagined their private property rights might be superceded by Aboriginal title. And they likely don’t know government’s version of reconciliation goes far beyond Canadian constitutional law surrounding Aboriginal rights.
It’s no mystery why.
Guiding the province’s implementation of reconciliation like a north star is the Declaration on the Rights of Indigenous Peoples Act, 2019 (DRIPA) and the principles it was based on, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
The problem is, there are at least two land and resource-related provisions in UNDRIP which the BC NDP government appears to have whole-heartedly embraced that are in conflict with constitutional law.
The first is the concept of “self-defined” Indigenous traditional territories and the resources within them being “owned.” The second is a requirement for Indigenous “consent” of any government action that might affect those allegedly owned Indigenous territories. This is the requirement referred to as “free, prior and informed consent.”
There is no such requirement for claimed territory under Canadian law. Nonetheless, the provincial government has adopted the consent standard (e.g. de facto Indigenous veto) for all major projects in the province.
The issue with “owned” Indigenous territory lies in the breadth of its definition, which is geographically and materially inconsistent with the requirements for proof of Aboriginal title under the Canadian constitution.
Where UNDRIP contends Indigenous ownership can exist on lands that were occupied or merely used, Canadian law requires proof of regular and exclusive occupation of lands to demonstrate Aboriginal title. The former supports a concept of Indigenous title to all claimed territorial lands; the latter has awarded Aboriginal title under Canadian law to less than six per cent of such territorial claims.
Extrapolate this model of granting title to 100 per cent of territorial claims across the land base and the potentially far-reaching consequences are obvious. About 95 per cent of the province is subject to Indigenous land claims. In many cases, the claims are overlapping.
DRIPA was supposed to align with constitutional law
Things didn’t start out this way.
In fact, back in November 2019 when the late John Horgan’s NDP government introduced the DRIPA legislation, officials were specifically asked whether UNDRIP would be interpreted through the lens of section 35 of the constitution. Scott Fraser, Horgan’s then minister of Indigenous Relations and Reconciliation, said yes. Fraser then unequivocally acknowledged his government’s intention to implement DRIPA in accordance with Canadian constitutional law.
What we have seen since 2019, however, is two successive NDP administrations forcing onto the British Columbia public whatever connotation they choose to give to the articles of UNDRIP, no matter how outlandish, with no public debate whatsoever and no adherence to the decades-long court interpretations of Canadian constitutional law.
Case in point, last year, public backlash forced the BC NDP to shelve UNDRIP-inspired Land Act amendments that proposed giving joint statutory decision-making powers (aka a veto) to Indigenous nations over land use. When asked about the failed legislation on two subsequent occasions, Premier Eby said his government would not reintroduce the changes and he seemed to indicate the public pushback was a hard lesson learned.
“We need to make sure that we have the confidence of British Columbians in doing this critically important work,” Eby said during last fall’s televised election debate.
But what lesson the premier actually learned is a matter of debate. Because a month before he uttered those words on camera, his government had secretly inked an agreement to create First Nation joint and sole decision-making authority over land use, nearly identical to the legislation he said he wouldn’t revive. But his government waited until after the election to tell the public about it.
Since then, the Eby government has charged full steam ahead negotiating more secret agreements that dramatically change land use decision-making in B.C. and who has authority for it.
Irreconciliation in action
Through it all, there has never been any proper engagement with British Columbians to determine whether voters agree with the government’s over-the-top interpretations of UNDRIP. Nor has the public in this province, or across Canada, been asked for their views on whether it thinks UNDRIP is an appropriate framework for reconciliation at all.
Many people don’t even know what UNDRIP is. So, they certainly haven’t given government a mandate to upend public land use decision-making based on it. And there has never been any proactive public education or full disclosure by the government of how, why or what they intend to roll out under their UNDRIP-based reconciliation banner.
The core communication by government with British Columbians seems to be after-the-fact downplaying of already completed, behind-closed-doors negotiations with Indigenous communities throughout the province.
This is not reconciliation. It is the opposite; it is irreconciliation.
More dysfunction on the land base
As it stands, UNDRIP is sowing deep division everywhere it is being applied in these agreements, raising critical democratic questions about how private and public land can be used, who can access it, and under whose authority it will be managed.
Meanwhile, the B.C. government continues rolling out its unmandated reconciliation strategy in communities across the province, presenting surprised residents and local elected officials with done deals negotiated in secrecy.
In the latest manifestation of Robespierre’s “tyranny of the minority,” proposed amendments to the Heritage Conservation Act will expand Indigenous decision-making and allow “sweeping” new land use protections for such vague reasons as “intangible cultural heritage” or “places within Indigenous world view,” and “cultural landscapes.” These changes were concocted entirely by the BC NDP government and the activist First Nations Leadership Council, with no one else’s input.
Despite the premier and his ministers’ protestations otherwise, the changes amount to re-introducing the failed Land Act amendments on steroids, and they will undoubtedly add more dysfunction to the B.C. land base.
All without any public discussion, education or debate.
Nor have voters been consulted about whether they support the ideology behind these agreements and their inconsistency with Canadian constitutional law. In fact, the government has no idea whether a majority of British Columbians agree with its reconciliation strategy or not, because it has never come clean and asked.
Whatever lies at the heart of the Eby government’s UNDRIP-based plans for this province, precedent suggests the last to be told about it will be everyday British Columbians.
Sadly, we have reached a state of governance in B.C. that Monsieur Robespierre would have recognized instantly.