B.C.’s Minister of Jobs and Economic Growth recently penned a message to all British Columbians which essentially goes as follows: if only you unwashed masses were smart enough to see what he and his enlightened NDP really were up to, you’d understand just how right they are and how wrong you are
to be worried about reconciliation, property rights and the economic future of the province.
Referring to the recent Cowichan Tribes v. Canada decision—which ruled fee simple private property title was “defective and invalid” in part of the area where Aboriginal title had been declared—Ravi Kahlon wrote in the Vancouver Sun that the decision had “created confusion about what reconciliation means in practice.”
British Columbians, at least in the eyes of Minister Kahlon just don’t understand that they have nothing to worry about and it’s really all the court’s fault.
Kahlon is clearly echoing his boss, Premier David Eby, who accused the courts of “overreach” rather than owning up to his government’s failure to defend the public interest in Richmond as vigorously as it could have.
Dismissing the valid concerns of voters as “confusion” about the ruling not only disrespects the citizens Kahlon and his colleagues are supposed to serve, it misrepresents the reality of Cowichan’s landmark decision, and ignores the stark economic consequences already underway in B.C.
Within the 800-acre area in Richmond, B.C. affected by the Cowichan Tribes decision, Montrose Properties, a large land owner in the area, says it lost a $35 million dollar construction loan and a future tenant when talks ended, because of property rights uncertainty created by the ruling.
Then a property purchase worth close to $100 million for the Versante Hotel near the Vancouver International Airport was likewise derailed, reportedly due to the uncertainty which now shrouds the entire province. Even more worrying than the Montrose situation, the Versante property was not on the lands over which Aboriginal title was declared, indicating investors are uncertain about any land deals in B.C.
DRIPA gives First Nations veto power
In his OpEd, Minister Kahlon went further, confirming what critics of the NDP’s reconciliation agenda have been saying and his government has repeatedly denied: that DRIPA gives First Nations veto power.
“When governments walk away from agreements with First Nations, projects don’t move faster—they stop,” Kahlon wrote.
David Eby seemed to confirm this in a recent post about the Eskay Creek Mine, saying “it would not exist” without partnership and “agreement” (read consent) from the Tahltan Nation.
When Kahlon added that “the concept of First Nations title, which underlies the issues of land use and consent, wasn’t invented by [DRIPA]. It’s part of Canada’s Constitution and has existed since before Confederation,” he seemed to be deliberately muddying the waters.
By casually tossing around the words “consent,” and “agreement” both Kahlon and Eby fundamentally misunderstand, or misrepresent, the constitution and the law surrounding it.
Aboriginal title is indeed recognized in Section 35 of the constitution, but nowhere in the constitution or in previous court rulings has First Nation’s consent been required to proceed with projects on Crown land or claimed territory. The Tsilhqot’in Nation v. British Columbia ruling in 2014 made this explicitly clear.
“Consent,” i.e. a veto, is fast becoming de facto government policy when it comes to land use management and resource development. DRIPA’s so-called section 7 consent-based decision-making agreements are not required by any law. In the context of Crown land or legally unproven claimed territory, the BC NDP government has voluntarily imposed a consent standard as laid out in UNDRIP and is in no way a constitutional or Canadian imperative.
British Columbians are not ‘confused’
Kahlon may well be rcorrect that when he writes that “as First Nations leaders have pointed out, every major project in the province would be in jeopardy if we repealed DRIPA.” But that’s because the BC NDP government has voluntarily allowed a United Nations human rights document, never intended to be law, to supersede years of legal precedent guided by section 35 of the Constitution.
Section 35 intends to balance the interests of Canadians and First Nations where questions of Aboriginal Title exist.
UNDRIP on the other hand, demands Aboriginal “consent” before projects or laws may proceed. In fact, the Eby government appears to have set DRIPA-enabled consent as the new expectation and starting position in land use negotiations.
The bottom line is, voters are not “confused” at all by what’s going on in B.C.
They clearly see a province that has been economically run into the ground by incompetent management. They also see a government that has made obfuscation, backroom dealing, and secrecy their modus operandi for land use and other decision making with First Nations.
But British Columbians have had enough of being excluded from a process which cuts to the heart of the future of their province.
In the final line of his article, Minister Kahlon asserts that for B.C. “the path forward is together — or not at all.”
British Columbians agree.
The 95 per cent of the population he and his government have thus far excluded from major land-use decision making are now demanding to be part of the process, and they must have laws designed to benefit everyone — together.