As B.C. heads into legislative debate about whether the government’s efforts to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) can be saved, a larger question looms.
Can British Columbia be saved?
Or will it be broken up into many independent nations because Canada failed to complete its historic treaties over three quarters of the province?
The implications of the recent Cowichan Tribes court case in Richmond, the NDP government’s imposition of aboriginal title over all land in Haida Gwaii, the uncertainty over private property rights and the best course of action for DRIPA were discussed at a Macdonald-Laurier-sponsored panel discussion this month.
The Declaration on the Rights of Indigenous Peoples Act (DRIPA) is a 2019 provincial law that guides the BC NDP’s reconciliation efforts and incorporates UNDRIP principles. A recent BC Court of Appeal decision ruled that DRIPA is enforceable by courts and all laws must comply with it. Premier David Eby criticized the decision and promised to appeal it.
Panelists Karen Restoule, director of Indigenous affairs for the institute, and Tom Isaac, chair of the aboriginal law group at Cassels and former chief treaty negotiator for B.C., described their competing visions of B.C.’s future at what they said was a turning point in its history.
Both Restoule and Isaac agreed that Canada is the least likely country UNDRIP was meant to address, since Canada stands alone in providing constitutional protection for Indigenous people, thanks to an amendment in 1982. Where UNDRIP was intended to offer minimum protection in Third World countries.
“UNDRIP was developed over decades with the United Nations, with participation from Indigenous leaders from around the world who were advocating for recognition in the legal system that did not provide the constitutional protection that exists in Canada under section 35,” said Restoule, an Ojibwe from Dokis First Nation, which is a signatory to the Robinson-Huron Treaty of 1850.
Aboriginal title incompatible with private property
Isaac, a long-time critic of B.C.’s reconciliation efforts, whose name alone raises hackles in the current NDP government, says Premier David Eby’s latest effort to settle aboriginal title province-wide is as dangerous as previous efforts were under former premier Gordon Campbell.
Campbell abandoned his government’s “new relationship” agenda in the late 2000s, following pushback from the public. Isaac says Eby’s government, like Campbell’s before it, doesn’t understand that aboriginal title is above all other land rights, and incompatible with private property.
“The Crown retains no beneficial interest in the land – unheard of in the common law, in terms of property rights,” Isaac said. “The Crown has to ask permission to go onto aboriginal title lands.”
But the Supreme Court of Canada has also made it clear that the Crown can “justifiably infringe” on aboriginal title in a broad range of circumstances, including: “Forestry, mining, general economic development, the building of infrastructure, environmental protection and the final one, the settlement of foreign populations,” Isaac said. “Which is what? Homesteading, which is the granting of fee simple interests.”
“The Crown has to ask permission to go onto aboriginal title lands.”
Tom Isaac
He blasted the province for ceding title to all land on Haida Gwaii, including over private property, and for citing a survey of landowners as proof citizens supported the land title agreement.
So-called “consultation” with Haida Gwaii residents reportedly consisted of a survey in which a majority of landowners agreed to the merits of striking a reconciliation deal with the Haida. According to Isaac, the government’s survey didn’t inform non-Haida residents their private land would be part of the deal.
B.C.’s 2024 Rising Tide agreement with the Haida is “one of the worst that I’ve seen in my 40 years of practising law, because of its vagueness and the fact that the province has acknowledged aboriginal title over every square inch of Haida Gwaii, and aboriginal title is an exclusive right to the land,” Isaac told the event audience.
He said direct discussions with business and residential owners on Haida Gwaii indicate their property values have fallen by 50 per cent since the Rising Tide deal was signed, adding that every market economy in the world depends on secure property rights.
Governments have muddied the waters
Restoule warned that B.C. is at a “breaking point” in its development of alternative ways to deal with the province’s unique lack of treaties.
Land acknowledgements are not an accurate description of the relationship, but Restoule rejected suggestions that this modern practice had somehow “hardened into law,” creating the current surge of land reforms, in and out of court.
Canada’s obligation to obtain aboriginal land only by treaty dates back to the British empire’s Royal Proclamation of 1763. After more than 30 years, the B.C. Treaty Commission has completed only a handful of treaties. UNDRIP, and now land-use planning, have been introduced to speed things up.
“Instead of legislating to resolve the constitutional questions that had been left open by Section 35, specifically clarifying the scope of aboriginal title, these actions introduced new layers of legal uncertainty,” Restoule said. “They blurred lines of jurisdiction. They complicated land governance, creating confusion about the source and scope of Indigenous nation authority.”
“Instead of legislating to resolve the constitutional questions that had been left open by section 35 [in the Canadian constitution]… these actions introduced new layers of legal uncertainty.”
Karen Restoule
Restoule defended UNDRIP as a set of principles designed to ensure fairness.
“Don’t build malls or golf courses over cemeteries. Talk to your neighbour before digging up their back yard. And perhaps invite them to be a business partner on those projects. Respect their languages, traditions, protocols. Pretty standard stuff if you want to be a good neighbour.
“However we see the implementation of UNDRIP through DRIPA has too often occurred in an environment shaped by political rhetoric that framed the issue in polarizing terms: All land is stolen, anyone who is not Indigenous is an alien, and other weird framings.”
Land claims over private property are mounting
The Cowichan Tribes decision of August 2025 cast doubt on the validity of fee-simple private property. The Cowichan and all six defendants, including the province, announced an intention to pursue an appeal. The Cowichan want to win title on the remaining 40 per cent of the tribes’ claim.
Meanwhile, another aboriginal title claim to private property has been filed.
The Dzawada’enuxw First Nation is claiming a large tract of land near Kingcome Inlet on B.C.’s Central Coast. Originally categorized as “Indian settlement lands,” the Dzawada’enuxw case is similar to the Cowichan claim that property near Vancouver International Airport was sold after being promised as reserve.
At Kingcome Inlet, nearly 500 hectares were assembled by the Nature Trust of B.C. to preserve the inlet wetland, and three parcels are now owned by Interfor Corp.
Other title lawsuits include a claim by Tkemlúps the Secwépemc to a wide region including the city of Kamloops. Tkemlúps said the claim is not intended to include private or city-owned land, but neither have those property interests been excluded from the court claim. A lawsuit land claim was launched by Kwikwetlem First Nation over land owned by the City of Port Coquitlam, the province and the Metro Vancouver Regional District, but according to the city, no privately-owned property falls within the claim.
Land-use agreements intended to avoid law suits, instead cede control
And there are a series of “land use planning” agreements in the works, which the province said are intended to avoid court action. Many include large areas of Crown land where the B.C. government appears to have effectively ceded control and final decision-making to Indigenous groups.
Several land settlements have come to light recently after having been negotiated in secret. The Shíshálh dock management plan awarded the First Nation joint and sole decision-making over Crown land. Squamish Nation near Whistler and ‘Namgis on Vancouver Island are negotiating agreements, and talks continue with Tahltan and Kaska Dena over a vast northern region representing about 20 per cent of the province.
Several aboriginal law litigators indicate there are more legal challenges to B.C. government in the works. As yet, one private commercial landowner, Montrose Properties, has announced it will challenge the Cowichan Tribes court decision affecting Richmond property owners, and the Pender Harbour Area Residents Association has launched a second court action to have the province’s DRIPA struck down.
Opposition Conservatives and all Independent MLAs are calling on the B.C. government to repeal DRIPA, even as First Nations leaders have warned the premier not to change a word.
Eby government officials have said the province won’t back down from DRIPA, but will amend it to ensure the courts can’t apply it as a law. And Eby has also vowed his government would “go to the wall” for landowners.
The challenge for the BC NDP in the spring legislative session will be to create and pass amendments that somehow keep the DRIPA alive in spirit, while ensuring property rights don’t get sacrificed in the process.