Reconciliation should build on Canadian constitutional law

Written By Geoffrey Moyse
Published

UNDRIP framework for land use agreement, divisive, likely unconstitutional


As a former B.C. government senior legal counsel on Aboriginal law who spent 31 years advising six successive governments in the Ministry of the Attorney General, I’ve advised on treaties, land use agreements, rights and title court challenges and witnessed the passage of the Declaration on the Rights of Indigenous Peoples Act (DRIPA). My advice to those various governments, including the present one, are subject to solicitor/client privilege and cannot be disclosed. 

What I’ve seen in the past two years since my retirement is concerning, particularly as it relates to how UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is being interpreted and applied.

Back in 2019, the B.C. government of the day passed the DRIPA legislation which aims to bring B.C.’s laws into alignment with a non-legally binding human rights declaration, UNDRIP. During debate on this legislation, then Minister of Indigenous Relations, Scott Fraser, informed the legislature that the government’s intention was to apply UNDRIP in a manner consistent with section 35 of the Constitution Act, 1982. 

Section 35 recognizes and affirms proven Aboriginal and Treaty rights in Canada. The Supreme Court of Canada has issued many judgments since 1982, defining those rights and setting out tests for their proof. This includes case law on the test for proving Aboriginal title in Canada.  

UNDRIP interpretation differs from Canadian law

Unfortunately, there are a number of Articles contained in UNDRIP – a non-binding UN declaration with no force of law in Canada or British Columbia – that appear to be directly contradictory to, or at least potentially inconsistent with, section 35.

Canadian constitutional law on Aboriginal rights and title very intricately balances the rights of Indigenous people with the rights of every other Canadian, unlike UNDRIP, which sets out Indigenous rights as absolute rights. 

Another distinction between UNDRIP and Canadian constitutional law is in the definition of ‘territory.’ 

Section 26 of UNDRIP sets out a definition of Indigenous territory that is much broader than section 35 of Canada’s Constitution Act.

The definition of Indigenous territory in UNDRIP is much broader than in Canada’s Constitution Act.

UNDRIP defines territory as any land owned, occupied or even merely used, and sets out the proposition that Indigenous people outright own all such lands as they may claim, as well as all of the resources found on them. 

Canadian law does not say that. 

On the subject of Aboriginal ownership of land (e.g. Aboriginal title under section 35), the Supreme Court of Canada said title only exists where there’s sufficient and exclusive occupation of certain lands adequate to ground such title. Mere historical use of claimed territorial lands does not meet that test. 

That definition of title has been applied in the Tsilhqot’in and Nuchatlaht court cases in British Columbia. Both those title declarations resulted in court only recognizing Aboriginal title to 6 per cent or less of claimed traditional territories. And neither title declaration included private property. 

Haida Gwaii agreement 

With respect to the recent land use agreements with First Nations, specifically the Haida Gwaii Title Lands Agreement, the B.C. government appears to have ignored Canadian constitutional law and applied an interpretation of territorial title according to Article 26 of UNDRIP which goes far beyond what Canadian courts have recognized. 

On Haida Gwaii, the provincial government made and legislated a unilateral declaration of Aboriginal title (supposedly under Canadian law) over the entirety of the Haida Gwaii archipelago, amounting 100 per cent of the Haida’s territorial claim – 10,000 square kms of land in total. This looks to be an application of territorial ownership consistent with UNDRIP, but inconsistent with Canadian Aboriginal title law. 

A proper application of Canadian law in the Haida circumstance would not likely result in a 10,000 square km award of Aboriginal title. 

In the Tsilhqot’in case, for instance, 1,900 square kms, or 5.5 per cent of the total claimed traditional territory, was declared title lands by the Supreme Court of Canada. Nuchatlaht claimed 200 square kms of traditional territory as Aboriginal title lands but the court declared title on only about 11 square kms. 

On top of that, the British Columbia government unilaterally awarded Aboriginal title over all private lands on Haida Gwaii, without needing to, and without precedent. 

The BC government unilaterally awarded Aboriginal title over all private lands on Haida Gwaii, without needing to, and without precedent. 

While the government claims there is a “carve out” for provincial authority to remain in effect over private lands now allegedly burdened by Haida Aboriginal title, there was no need to impose Aboriginal title over private lands in the first place. 

There are significant legal issues that arise when Aboriginal title is imposed on private land and the government’s badly thought through jurisdictional “carve out” does not resolve those issues. Nor does it prevent the potentially huge devaluation of those lands and associated implications. 

Worse, as I understand constitutional law in this country, there is no basis for a province to unilaterally legislate Aboriginal title over anything without an agreement with a First Nation and the government of Canada under section 35.3 of the Constitution Act, 1982, and there must be reciprocal “mirror” legislation by both the province and the federal government to give it legal effect. 

Since Aboriginal title is at the core of exclusive federal jurisdiction, the Haida title legislation is very likely to be unconstitutional. 

Consent: UNDRIP versus Canadian law 

Another serious problem is Article 32 of UNDRIP, which is the now infamous consent/veto provision which says anything that may affect Indigenous people’s territories, as broadly defined in Article 26 of UNDRIP, has to have their consent. Period, full stop. 

No balancing.

Consent, or you don’t proceed. 

Canadian law, on the other hand, says consent is only required once title has been proven under Canadian law. And then, consent should be sought for anything the government chooses to do with Aboriginal title lands. 

If consent is not forthcoming, there’s an infringement test set out for section 35 which is quite stringent, that government would have to meet in order to do something on court-proven Aboriginal title lands. 

Canadian law says consent is only required once title has been proven.

Evidence of government’s apparent intent to embrace articles 26 and 32 can be seen in section 7 of DRIPA, which authorizes the B.C. government to enter into agreements which provide for “joint decision making” by the provincial government with Indigenous governments over public lands. Or it sets out the requirement for Indigenous consent before a government decision can be made at all.

Clearly, the proposed amendments to the Land Act – which were quickly shelved by the government in response to a vehement public backlash in the spring – were based on a broad interpretation of Article 26 Indigenous ownership and jurisdiction and reliance on the “consent” requirement of Article 32(2).  

They are in no way based upon section 35 Canadian law.

Over the past two years I have seen various statements from government ministers and Premier David Eby himself, referencing “decolonization,” “stolen lands” and non-Indigenous “settlers,” along with admonitions that the public (and B.C. government employees) should not call themselves “British Columbians” for fear of offending those who see this province as illegitimate.

When those statements are coupled with the manner in which Articles 26 and 32(2) of UNDRIP are being promoted by the government in place of section 35, I am forced to ask myself what the government’s actual intentions are toward recognition of Indigenous ownership and jurisdiction over British Columbia’s public and private lands.

Haida Gwaii, template of ‘the possible’

David Eby said the Haida Gwaii title agreement is the “template for the art of the possible”
in the rest of the province. 

If this is the template, does that mean future agreements will recognize Indigenous claims of ownership under UNDRIP to 100 per cent of the lands they claim they’ve ever used? 

Will that ownership interest be said to exist over all private and public lands within those claimed territories? 

Using this approach based on Article 26 of UNDRIP, the government could then potentially create territorial title over wide swaths of claimed territory where Canadian courts would probably say there isn’t title at all. Consent for any government authorized use of those lands, as well as any public access, would then be required over those territorial lands.

All of this could occur, as on Haida Gwaii, without a court declaration or any application of the burden of proof requirement under section 35 of the Constitution Act, 1982

Recipe for divisiveness

Instead of using Canada’s existing legal framework, the NDP’s approach to reconciliation looks to open the door to recognizing Indigenous claims over the entirety of the province – without scrutiny or legal verification. 

The NDP’s approach to reconciliation looks to open the door to recognizing Indigenous claims over the entirety of the province.

On the eve of an election, I find myself wondering if a majority of British Columbians believe that reconciliation should be based on a non-binding UN Declaration, broadly interpreted by government, or if they believe reconciliation should build on the foundation of Canadian constitutional law?

As a lawyer with decades of experience advising both NDP and BC Liberal provincial governments on Aboriginal law, and as one who has worked for reconciliation for more than 30 years, I have remained dedicated to the belief that section 35 provides the proper basis for reconciliation in Canada. 

But upon reviewing the NDP election platform, I see no commitment to implementing UNDRIP consistent with Canadian constitutional law. And no indication the factious labeling of British Columbians as “settlers” on “stolen” Indigenous lands is going to stop.

Is this what reconciliation with UNDRIP as the framework means for British Columbians?

If so, it is a recipe for societal divisiveness in this province. 


To hear more on this topic from Geoffrey Moyse, listen to his podcast interview with Bob Mackin on the Breaker news.