“Do we seriously believe that the framers of section 35 in 1982 intended the destruction of private property when they added the words “Aboriginal rights” to our Constitution?”
—Geoffrey Moyse
Former attorney general Geoff Plant is once again cheerleading the BC NDP government’s failing and divisive “Indigenous rights” agenda, while at the same time reminding us that it is really the courts and not governments that are the final arbiters of the difficult and complex legal, social and political issues associated with “reconciliation.”
Mr. Plant’s support for the present government’s DRIPA-based efforts, as well as, for court-based “reconciliation” is both confusing and frankly ridiculous.
Perhaps his need to try to publicly prop up the Declaration of the Rights of Indigenous Peoples Act and the government’s reconciliation agenda relates to his original support for the “DRIPA project” back in 2019 when he helped lock down all-party support to pass the legislation. And because, seven years later, support for DRIPA is now rightfully failing and the government’s whole UNDRIP-based so-called “reconciliation” initiative is in jeopardy.
Hence, “the drumbeat of complaints from opposition politicians and commentators about the B.C. government’s aboriginal policies,” which Plant dismisses as “a profound misunderstanding of Canadian law,” in his OpEd for Northern Beat last month.
But those complaints and criticisms Plant are completely warranted. The government’s DRIPA legislation is deeply flawed and has been haphazardly implemented outside the framework of Canadian constitutional law and without a democratic mandate for the manner of its implementation by this government.
Geoff Plant is a Vancouver litigator and a former BC Liberal attorney general with expertise in aboriginal law, including as counsel in Delgamuukw v. British Columbia and Cowichan Tribes v. Canada. Plant was senior advisor for the Gordon Campbell government in negotiations with the Haida Nation and the First Nations Leadership Council, and currently advises the BC NDP government on implementing public policy through the DRIPA framework. He is credited with helping marshal all-party support for DRIPA in 2019, and is a 2022 Order of B.C. recipient.
DRIPA legislation is deeply flawed and has been haphazardly implemented outside the framework of Canadian constitutional law.
Throughout the OpEd, Plant seems to vacillate between support for and opposition to non-elected judges defining and dictating reconciliation.
“When it comes to deciding what land and resource policies to pursue, whether to develop a mine or build a shopping centre, to regulate forestry practices or establish a park, in any case where the proposed plan may adversely affect aboriginal title, it is ultimately judges – not voters – who have the last word on whether that policy or plan can be implemented,” writes Plant.
Then later, Plant seems incensed at the recent Gitxaala decision of the BC Court of Appeal, which ruled DRIPA was an enforceable law, therefore, the Court said all legislation must be in alignment with the principles of the UN Declaration of Rights of Indigenous Peoples (UNDRIP), as per DRIPA and the Interpretation Act (both introduced by then-attorney general David Eby).
“The work of DRIPA has now been undermined by an entirely unnecessary and unfortunate decision of BC’s Court of Appeal…The court should have declined to entertain the [DRIPA] argument. Its failure to do so was irresponsible…The decision has opened the entire statute book of British Columbia to judicial challenge for compliance with UNDRIP,” wrote Plant.
This raises an obvious question. If Plant and the Eby government perceive UNDRIP to be the holy grail of reconciliation, as they appear to do, and they have embraced the courts having the final say on other aspects of what constitutes appropriate reconciliation, what is so problematic about the courts giving DRIPA and UNDRIP full legal effect?
This is a staggering hypocrisy, bordering on the absurd.
If government doesn’t want DRIPA legally enforced, then repeal it
Mr. Plant is critical of the Gitxaala judgment because he knows giving UNDRIP full legal recognition will lead to a disaster of monumental proportions.
If DRIPA cannot be tolerated as a legitimate law in B.C., then it should be repealed in its entirety.
Equally ludicrous will be if the current government enacts a very narrow amendment to DRIPA, rather than getting rid of the entire UNDRIP mess and its associated consent-based agreements and unlawful and undemocratic joint land use planning initiatives.
Yet, this seems to be the plan.
At a recent press conference, current Attorney General Niki Sharma said upcoming DRIPA amendments “won’t be about stepping back,” but will focus solely on “what that role is of court oversight” related strictly to the Gitxaala judgment.
“[The amendments] won’t be about stepping back from DRIPA… we’re very focused on the work of reconciliation through that framework.”
Niki Sharma
Plant seems to agree the B.C. government should only amend DRIPA – presumably so the courts will not have the final word on UNDRIP – despite his previous stated faith in them to do so effectively.
And anyway, writes Plant, repealing DRIPA “will not change the fact that all provincial government decision-making will continue to be potentially judicially reviewable under the principles established in Haida Nation, nor the fact that virtually all of British Columbia is subject to claims of aboriginal title.”
“One way or another,” he says, “the courts will still have the last word. “
Perhaps Mr. Plant was called upon in 2019 by the NDP government of the day to opine that DRIPA as drafted would not be justiciable. If so, that would be embarrassing and may explain why he has chosen to publicly criticize a judgment rendered by British Columbia’s highest court.
Interpretation of section 35 veers away from common sense
It’s now becoming ever clearer the NDP government’s embrace of UNDRIP is not the only force deconstructing meaningful positive outcomes on “reconciliation”—it’s also what the courts have said about section 35 of the Constitution.
Section 35(1) of the Constitution Act, 1982, seeks to balance the rights of Aboriginal and non-Aboriginal Canadians, and has guided our courts for more than 40 years. When this country added section 35, it arguably did not understand the political or legal ramifications and handed the ultimate interpretation and enforcement of that provision entirely to the courts, removing those powers from democratically elected governments.
But now consider the outcome of the BC Supreme Court Cowichan Tribes case to see just how badly and dangerously a lower court can skew the balancing of Aboriginal and non-Aboriginal rights, a principle consistently emphasized by the Supreme Court of Canada in its section 35 jurisprudence.
Since the late 1980s, Canada’s Supreme Court has been busy interpreting section 35 with gusto. A constitutional provision that once merely referenced “Aboriginal Rights” and “Treaty Rights” now magically includes, thanks to the Supreme Court of Canada, the concept of constitutionally affirmed Aboriginal title. And now, flowing from the Cowichan decision, Aboriginal title is said to be a “senior” interest in land which can override and negate private fee simple title.
When did Canadians consent to having their property rights made subservient to the property rights of Aboriginal people?
Mr. Plant seems to have no problem allowing the Court to decide on some matters: “Other rights holders and all of us as citizens may consider ourselves stakeholders in decisions affecting us, but aboriginal title holders are ‘super-stakeholders,’ with a constitutionally protected seat at the decision-making table.“
In this case, we are led to believe giving the courts the “final word” on reconciliation is a good thing, even if it results in Aboriginal title holders being designated “super-stakeholders,” whose title supersedes all private fee simple titles to land.
When did Canadians consent to, or have any input into, the notion that section 35 recognition of “Aboriginal rights” would produce a constitutional legal regime in which their property rights are made subservient to the property rights of Aboriginal people? This is the judge-made law that Mr. Plant says, “will be the final word”.
Do we seriously believe that the framers of section 35 in 1982 intended the destruction of private property when they added the words “Aboriginal rights” to our Constitution?
And where in all of this did the concept of Canadian democracy disappear to?
There is nothing democratic about section 35. Every judgment on section 35 now seems to stray further and further from common sense. It is no longer apparent that this constitutional provision is appropriate to further actual reconciliation in Canada.
Enter DRIPA and UNDRIP
In 2019, the BC NDP added to the burden of ever-growing problematic court decisions under section 35 by layering on another vaguely defined, burdensome and undemocratic super-structure in the form of the United Nations Declaration on the Rights of Indigenous Peoples or UNDRIP.
Understandably, and not at all surprisingly, the result on the land base seven years later in British Columbia is chaos.
Under UNDRIP, an aspirational and non-legally binding UN declaration, notions of democracy disappear entirely under the ridiculous and untenable requirement for Aboriginal consent before governments can act in the public interest. In article 19 of UNDRIP, for example, the democratically elected B.C. government cannot pass legislation without the consent of the First Nations Leadership Council, an elite activist Aboriginal organization that British Columbians do not get to vote for or against.
An October 2025 resolution from the chiefs of the BC Assembly of First Nations to the B.C. government called for new legislation to “embed the standard of free, prior, and informed consent in all legislative and administrative measures affecting First Nations…”
So here we are in 2026, with Mr. Plant singing the praises of Premier Eby, the NDP government, and particularly the courts for their endeavours to achieve true and lasting reconciliation in B.C.
The problem is, the opposite is occurring all over the province, not only because of section 35 but more importantly because of the nightmare that is DRIPA and UNDRIP.
First Nation consent not required on unproven claimed territory
Mr. Plant is correct that the 2004 Haida judgment clarifies that even claimed rights must be considered through consultation and accommodation, where appropriate.
What he does not mention about this court-imposed section 35 duty, is that the Supreme Court of Canada makes it clear that with decisions in the public interest, the government is not required to obtain Aboriginal consent in instances of unproven Aboriginal territorial claims.
But for Mr. Plant and the BC NDP government he now apparently supports, the province must now obtain the consent of Aboriginal communities before government can proceed or determine any form of land use in the overall public interest. To cement this concept, the Premier recently declared no major projects would proceed in B.C. without such consent.
Interestingly, in Mr. Plant’s words, “to proceed without aboriginal consent is to invite obstruction, delay, conflict and uncertainty.”
With the greatest of respect to my former colleague, this is a nonsensical analysis of consent and nothing short of supporting de facto Aboriginal veto-ability over government decision-making.
Unfortunately, it is a misinformed perspective now deployed by the current BC NDP government to justify adopting what amounts to a self-inflicted policy without a legal basis. Officials increasingly point to Articles 19 and 32(2) of UNDRIP (“free, prior and informed consent”) to unwittingly, or not, bamboozle the public into thinking consent is required under the law for virtually all land-use decision-making throughout the province.
Contrary to Plant’s conclusion – it is actually the wisdom of Canada’s Supreme Court reasoning in Haida that “no Aboriginal consent is required” for government to proceed to determine uses of public lands. This distinction is integral because it gives government the ability to act in the broader public interest to pass legislation and make land use decisions where Aboriginal communities would prefer to exercise a veto authority over either of those matters by citing UNDRIP.
Canada’s Supreme Court reasoning in Haida… gives government the ability to act in the broader public interest to pass legislation and make land use decisions where Aboriginal communities would prefer to exercise a veto authority.
His further observation that no government activity should occur without Aboriginal consent due to the possibility of endless litigation and judicial review, makes a mockery of the justice system. The role of the courts is to ultimately uphold principles set out in Supreme Court of Canada jurisprudence, including the principle of “no consent being ultimately required,” specifically intended to ensure government can govern in the public interest.
Tying government policy to Articles 19 and 32(2) of UNDRIP—which Mr. Plant apparently strongly supports—ignores the wisdom of the courts and is the best way to create the very “obstruction, delay, conflict and uncertainty” he warns against. Worse, it sets up an environment where payment of money is now being demanded to “buy” such consent.
British Columbia now finds itself in an ever-worsening economic situation, rife with obstruction, delay, conflict and uncertainty on the land base. The B.C. government’s radical embrace of an aspirational United Nation declaration into provincial law is obstructing a democratic, elected body from representing the public interest of over five million British Columbians. And the real-world reality is proponents of projects must now pay-to-play to “buy” that consent.
Aboriginal title does not exist everywhere
It is very refreshing to hear a senior lawyer correctly admit that Aboriginal title does not exist everywhere in British Columbia. Perhaps he would be willing to advise the Premier and his attorney general on this point and remind them of the Supreme Court jurisprudence that establishes that fact in Canadian law.
Even more alarming than the false, over-reaching interpretation that Aboriginal title carpets the entire province, is the Eby government’s overt, and unlawful recognition of unproven Aboriginal laws and alleged territorial jurisdiction as having equal if not paramount legal effect to provincial laws over entire claimed territories.
No such legal territorial Aboriginal jurisdiction has any basis in Canadian law. And the government’s creeping recognition of “Aboriginal laws” and claimed territory as all being “Aboriginal title” land is creating a dangerous and chaotic uncertainty, economically, societally and legally.
In this regard, the government needs to be reminded of the comments of Chief Justice Lamer in Delgamuukw that any concept of Aboriginal plenary governance authority is not cognizable under section 35.
Negotiation is preferred, if the results are fair
Finally, on this next point, Mr. Plant and I can come closer to agreement.
He is correct that negotiation is the pathway to certainty. But it is not just any negotiation that will achieve that desired result.
To support his argument, Plant cites the 2004 Haida judgment: “The honour of the Crown requires that [aboriginal] rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation.”
But he fails to mention critical additional commentary from the Supreme Court of Canada that states “where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims” and that “treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act…”
I could not agree more. But, I don’t read this jurisprudence as giving a green light to governments to negotiate Aboriginal title any way they see fit outside the context of proper treaty-making. To do so, leads to very different results on the land base.
Mr. Plant and I clearly disagree on the form a “just settlement” may take. Secretly negotiated agreements are not treaties.
Secretly negotiated agreements are not treaties.
The Haida Gwaii land title agreement, for instance, recognized Aboriginal title over the entire archipelago—a result that would not have been obtained from a court judgment—including over private property title.
Missing from the agreement was the imperative balancing of rights inherent in treaty negotiations. Premier Eby called it the Haida agreement “the template,” and Plant apparently sees it, and the subsequent consent court order giving it constitutional protection, as a well-executed agreement for avoiding years-long treaty negotiations and the cumbersome public consultation process.
On this, I completely and utterly disagree.
The results of the Haida negotiations are a total and unmitigated disaster.
The agreement completely eradicated the public interest on Haida Gwaii and left private owners with nothing in the way of protection of their now seriously diminished property rights other than a simple contract that property owners were not even a party to. What advocates of the agreement call protection of private property rights is nothing more than a contractual promise of non-obstruction by the Haida government to the provincial government that private landowners have no ability to enforce.
And now, those private land titles on Haida Gwaii are even more vulnerable after the BC Supreme Court Cowichan Tribes ruled Aboriginal title is the “senior interest in land” wherever it is declared over private property and that Land Title Act protections of indefeasibility do not apply to those private lands.
This ludicrously one-sided outcome, no doubt reached due to government’s heavy reliance on UNDRIP, is the total opposite of what a well-negotiated treaty accomplishes, which protects private lands, balances Aboriginal and public interests and gives both proper legal effect.
DRIPA undermines section 35 constitutional rights
Mr. Plant also waxes poetic about the value of UNDRIP as a tool to “meet the Supreme Court of Canada ruling that the rights of aboriginal people must be determined, recognized and respected” and further, that “DRIPA establishes a framework for how this work can be done, and it imposes an obligation on government to do that work.”
UNDRIP in fact establishes rights in land ownership, use and decision-making over resources that run roughshod over democratic governance and go far beyond Canadian constitutional law.
UNDRIP is most certainly not a tool for recognizing section 35 rights – it is a tool to completely undermine them. And it undermines the inherent balance in which the Supreme Court of Canada has defined and given legal effect to Aboriginal rights under section 35.
Implementation of UNDRIP continues to create dramatic and undemocratic changes to British Columbia laws: The proposed changes to the Land Act in 2024, the Premier’s quiet revival of them through joint and consent-based decision-making land use plans invoked under DRIPA, and sweeping revisions to the Heritage Conservation Act, each of which received formidable public and business backlash.
This process perpetuates a path to a societal train wreck of monumental proportions.
Methodically negotiated treaties are the way forward
Mr. Plant counsels that success will require a balance between “certainty” and recognition of Aboriginal rights and it “requires people to compromise positions and demands, to give and take. The result – when agreement is achieved – is certainty and stability, critical preconditions for economic and social prosperity.
There is a world of difference between the one-sided, so-called and ephemeral “certainty” and “stability” that Mr. Plant appears to believe is created by secretly-negotiated, UNDRIP-based agreements like Haida—along with the province’s newly minted undemocratic, joint land-use planning initiatives—and the actual legal certainty and opportunity that flows from methodically negotiated treaty agreements.
Where Plant totally fails in his analysis is in his insistence that application of UNDRIP leads to such “certainty” and “stability.” After seven painful years of chaos on the Crown land base, it is crystal clear it doesn’t.
Ironically, it is only the complete repudiation of UNDRIP as the framework for “reconciliation,” coupled with the wholehearted pursuit of efficient, expedited section 35 treaty-making that will return calm to communities and the economy, and stem the divisiveness created by trying to implement UNDRIP in this province.
Reaching honourably negotiated treaties is hard work that has been denigrated by many in those Aboriginal communities where their leadership may want nothing more than the treaty process to fail entirely in this province.
You can see why.
Under this government, UNDRIP and DRIPA offer a fast track to Aboriginal title and consent decision making over land use. To develop resources within a claimed territory, DRIPA section 7 agreements impose requirements on industry to obtain government-mandated Indigenous consent, increasingly, it seems, by any means necessary.
With consent-based decision-making, an Aboriginal community can hold a veto over resource development and government activities within the entirety of their claimed territory—over most of which, it may have no chance of proving legal title. With government backing the community’s territorial claim and a DRIPA section 7 agreement in hand, those communities can veto or demand money from industry as a condition of consent, even for projects occurring beyond their actual likely Aboriginal title lands under Canadian law (e.g. the only lands in which they have any potential economic interest).
[With] a DRIPA section 7 agreement in hand, those [Indigenous] communities can veto or demand money from industry as a condition of consent.
Alternatively, the Supreme Court of Canada sees treaties as the way to define section 35 rights in this country. In treaty negotiations, private property is not on the table. Contrast this with the recent Cowichan Tribes decision which interpreted section 35 in a way that completely undermines private property rights.
It is time to move detractors aside, erase DRIPA and UNDRIP from the British Columbia landscape, and get on with the serious work of real and balanced reconciliation achieved through cooperatively negotiated land claim agreements under section 35(3) of the Constitution Act, 1982. Treaty-making should have been continued many decades ago in this province and it must happen now for the good of all British Columbians.
On this, I hope Mr. Plant and I can agree.
Properly and honourably negotiated treaty agreements, ratified, recognized and affirmed under section 35, create the preconditions for the economic and social prosperity of all British Columbians that we must achieve as we move into the future together.