The drumbeat of complaints from opposition politicians and commentators about the B.C. government’s aboriginal policies reveals a profound misunderstanding of Canadian law that supposes political ideology is the cause of the current state of legal affairs.
In reality, when it comes to questions of indigenous claims and rights, it is the judges who have the last word, not politicians.
Viewed from this perspective, the B.C. government has been doing a good job of balancing constitutional rights and risks with the need for certainty and security for all of us. Instead of criticizing, we need to encourage this work. Our social and economic prosperity depends upon it.
A useful starting point to gain a clearer understanding would be the law of aboriginal title and the reality that the recognition of aboriginal title is not a political choice; it is a legal obligation.
Private ownership can be extinguished, Aboriginal title cannot
Aboriginal title is a judicially developed idea. Its modern incarnation is rooted in a statement made in the Calder et al. v. Attorney General of British Columbia Supreme Court of Canada decision from half a century ago: “[t]he fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means…”.
The law of aboriginal title gives weight to prior indigenous presence and the proposition that it has continuing legal significance.
Twenty-four years later, another Supreme Court of Canada decision, Delgamuukw v. British Columbia answered the question about the content of aboriginal title when the Court held “aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title.”
It’s not just a right to do something on land, it’s a right to the land itself, including the right to decide how the land is to be used.
Private property also confers the right to exclusive use and occupation of land, but aboriginal title is different.
Unlike ordinary land ownership, aboriginal title is constitutionally protected.
Your home can be expropriated – your ownership extinguished – by the province without your permission. Aboriginal title cannot. The Delgamuukw decision ruled aboriginal title was not extinguished when the colony became the province of British Columbia, and the province has never had the power to extinguish it.
Aboriginal title can only be infringed if government can meet the high bar of justification: it must demonstrate it engaged in a serious and respectful way with the First Nation holding the title, and then also persuade the court its objectives are “compelling and substantial.” It is courts, not governments, that decide whether these requirements have been met.
Courts decide legal framework for ‘super-stakeholders’
The legal basis for the establishment of this framework is, once again, court decisions.
First, the decision of the Supreme Court of Canada in the 1990 R v. Sparrow case, and then Delgamuukw in 1997. In these decisions, courts held that the recognition and affirmation of aboriginal and treaty rights in section 35(1) of the 1982 Constitution Act imposed obligations on government to recognize and respect aboriginal rights and provided protection against legislative power. As the Court said in Sparrow, “government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1).”
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.
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.
Aboriginal rights and title differ from other rights in another important way.
First Nations don’t have to prove rights to make demands
In the Haida Nation v. British Columbia 20 years ago, the Supreme Court of Canada held that whenever government “contemplates” conduct which may adversely affect an asserted aboriginal right, government is required to consult with the potentially affected First Nation, and in some circumstances, accommodate them.
In other words, First Nations do not have to prove rights before making demands of government; all they have to do is assert such rights.
According to the Haida Nation ruling, First Nations with asserted but unproven claims do not have a veto over Crown decision-making. But that is really beside the point, because it is not government that ultimately decides whether the Haida Nation duty has been satisfied, it is the courts.
Critics allege consent-based decision-making agreements negotiated by the B.C. government go beyond the court’s intention by conferring a veto to Indigenous bodies over land use, but where there is no prior agreement with First Nations about process and accommodation, there is a risk of judicial review, with an unpredictable, and potentially much less desirable, outcome.
To proceed without aboriginal consent is to invite obstruction, delay, conflict and uncertainty.
Aboriginal title may not exist everywhere, but it can exist anywhere
There has been a great deal of debate and uncertainty about where aboriginal title exists. The test for proof of title has been established in several cases, but the language used by judges inevitably permits different interpretations.
The first court decision in which a claim of aboriginal title was upheld in British Columbia was the Supreme Court of Canada decision in Tsilhqot’in Nation v. British Columbia, in 2014. Two more recent trial decisions – Cowichan Tribes v Canada and Nuchatlaht v. British Columbia[FY1] in April 2024 are both under appeal, but remain the law unless and until they are overturned by higher courts.
Taken together, these cases make it clear that while aboriginal title may not exist everywhere in British Columbia, it most certainly exists anywhere, even in the urban heart of the province.
Negotiation is the pathway to certainty
How, then, should government act?
The answer begins with acknowledging a constitutional imperative.
In the 2004 Haida Nation case, the Supreme Court of Canada said, “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.”
This is not a matter of political choice: government must determine, recognize and respect aboriginal rights. And the Crown must negotiate, which necessarily involves the give and take of compromise. Compromise rooted in recognition, not denial. Compromise which seeks to achieve the certainty that comes from agreement on the protection and definition of aboriginal and non-aboriginal interests.
The location and content of aboriginal rights is often uncertain. So, too, however, is the potential outcome of any court challenge. Litigation is a pathway to uncertainty.
Despite the concessions inherent in compromise, negotiation is the preferred alternative.
Consider the situation where a First Nation asserts aboriginal title to a provincial park where First Nation members have long used the area to gather plants for traditional medicines or spiritual purposes. The government and the First Nation enter into an agreement which grants the Indigenous body exclusive use of the park on a select number of days, with public use continuing on other days.
Members of the public see their accustomed access limited. The tourism industry complains. To some, it looks like a one-sided giveaway. But it’s really something completely different. In the absence of a land use agreement – and frustrated by government’s failure to recognize its asserted interests – the First Nation could litigate its title claim. If it succeeds, it will have the right to exclude non-indigenous people from the park permanently, because aboriginal title includes the right to the exclusive use of the land.
So, are we better off with the uncertainty and risk associated with an unaccommodated title claim or the certainty of an agreement founded on a compromise that recognizes the asserted title and tries to balance the rights of the First Nation that would flow from that with the needs and desires of the rest of the public?
Haida land title agreement a ‘model of compromise’
Similarly, the Haida Nation have been litigating their aboriginal title claim to Haida Gwaii for over two decades. In 2004 the Supreme Court of Canada said the Haida had a “prima facie case in support of Aboriginal title, and a strong prima facie case for the Aboriginal right to harvest red cedar” on a portion of its claimed territory.
The Haida claim encompassed all the lands and waters of Haida Gwaii, including privately owned lands and provincial and municipal lands and infrastructure. Any reasonably objective lawyer would have to acknowledge there was a risk that the claim would succeed. The province was right to be concerned. As we now know from last August’s Cowichan Tribes decision, until and unless an appeal court decides otherwise, fee simple ownership is not a defence to a claim of aboriginal title.
If the Haida title claim proceeded to court, there was at least some possibility – even a likelihood – the resulting court decision would leave Haida Gwaii private property owners in the same situation as the private property owners in the Cowichan Tribes title lands. Faced with this possibility, the province sought and negotiated an agreement with the Haida.
The agreement recognizes Haida title throughout Haida Gwaii, but it also expressly provides that the Haida Nation consents to fee simple interests on Haida Gwaii “continuing under British Columbia jurisdiction” and says that the recognition of Haida Aboriginal title does not “alter or derogate” from those fee simple interests. The Haida agreement gives fee simple landowners the very protection that the Cowichan Tribes decision does not.
The Haida agreement appears to me a model of the compromise that is required for meaningful reconciliation. So, too, are the modern treaties comprehensive documents based on the willingness of a First Nation to modify its aboriginal rights and title, and to move outside the paternalistic constraints of the Indian Act in return for the benefits of land, money, resource rights and governance authority.
Proposed Land Act changes would have changed the status quo
There are other good examples of balanced, meaningful reconciliation on a smaller scale.
Prior to the last provincial election, the government released a public discussion paper proposing amendments to the Land Act. The proposals were eventually swamped by a tidal wave of complaints about whether the government ought to have hired a marching band when it released the document so that everyone knew about it.
The noise over process overwhelmed a thoughtful consideration of the proposal itself. Some suggested wrongly that it represented a wholesale giveaway of Crown decision-making authority over land use planning. What it did was establish a framework for entering into agreements with willing First Nations that could lead to shared decision-making in some circumstances. It was enabling legislation, in other words. Unless and until there was a First Nation willing to enter into a negotiation with respect to such an arrangement, the framework would sit unused on a shelf.
What the framework offered was the opportunity to exchange the uncertainty of endless Haida Nation consultation claims for the certainty of agreed-upon planning processes with fixed deadlines and commitments and the backstop of a right to seek judicial review of any decision. Of course, all of this would represent a significant change from the status quo. But it would represent a change in the right direction, away from uncertainty and risk, confusion and delay, towards certainty and opportunity.
Critics argue that a government conferring shared decision-making to Indigenous bodies outside of the treaty process on asserted, rather than legally proven, title claims goes beyond Canadian constitutional law. There are always those who contend that government “cannot” undertake meaningful reconciliation initiatives and that the province can somehow recognize and respect aboriginal claims without actually negotiating them.
But the arguments of these critics are inevitably rejected by the courts.
In the Taku River Tlingit case—decided at the same time as the Haida Nation—the Supreme Court characterised the province’s argument opposing a constitutionalised consultation obligation as “impoverished.” And the province enters into treaty agreements conferring extensive self-government and regulatory authority without requiring proof of aboriginal title. When I was one of the plaintiffs who argued in the court challenge of the Nisga’a treaty that the treaty was unconstitutional because it created a third level of government, the court dismissed the argument on the basis there was residual aboriginal sovereignty sufficient to support the treaty.
Then when aboriginal title is established, the Crown loses almost all its decision-making authority. In Tsilhqot’in Nation v. British Columbia, the Supreme Court of Canada held that the BC Forest Act, and by extension, forest tenures, had no application on aboriginal title land.
While a great deal was said by Land Act opponents about what the Crown was “giving up” in offering opportunities for shared decision-making, not enough was said about the compromises First Nations would have had to make to sign onto one of the proposed agreements. Indigenous groups exchange the potential upside of an aboriginal title finding and the leverage provided by the Haida Nation consultation obligation for the promise to follow rules of process, timetables for decision-making and availability of judicial review that would come from these agreements.
When the risks and reality of aboriginal title are properly understood, the Land Act proposal was fair, reasonable and sensible.
DRIPA is framework for recognizing aboriginal rights
That brings me to the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP as it is usually, if inelegantly, described.
UNDRIP is a human rights document, a political statement, containing a series of commitments obliging states to recognize the unique – but all too often denied – rights of indigenous peoples globally. UNDRIP has been legislatively incorporated into the laws of British Columbia by a statute called the Declaration of the Rights of Indigenous Peoples Act, or DRIPA.
DRIPA is the first leg of the stool to meet the Supreme Court of Canada ruling that the rights of aboriginal people must be determined, recognized and respected. DRIPA establishes a framework for how this work can be done, and it imposes an obligation on government to do that work.
Gitxaala decision was ‘unnecessary and unfortunate’
The work of DRIPA has now been undermined by an entirely unnecessary and unfortunate decision of BC’s Court of Appeal.
In the 2023 Gitxaala v. British Columbia case, two first nations challenged the province’s mineral claim registration scheme, arguing that the process breached the Haida Nation consultation obligation. The plaintiffs also argued the mineral tenure regime was inconsistent with the requirements of DRIPA.
The trial judge found in their favour. He held that the regime constituted a breach of the Crown’s Haida Nation duty because it allowed mineral claims to be recorded without prior consultation with potentially affected First Nations. The judge held that DRIPA did not create justiciable rights and did not implement UNDRIP into the laws of B.C. He also made an order effectively setting aside the mineral claims regulation. The government thereafter changed the regulation.
The two first nations appealed.
On Dec. 5, 2025, a majority of the BC Court of Appeal reversed the trial judge, holding that DRIPA incorporated UNDRIP into the positive law of British Columbia with immediate legal effect. The judges also ruled the court could determine whether the provisions of the mineral tenure regime were inconsistent with DRIPA, and declared the regime was. The majority held that the Crown has a duty under DRIPA to consult and cooperate with the province’s indigenous peoples to address inconsistencies between rights and standards in UNDRIP and the laws of BC.
It is a flawed decision.
The plaintiffs had already achieved the result they intended in the 2023 trial. The appeal was not only unnecessary, it was improper. An appeal is not an opportunity for a successful party to argue that they should have won the case for a different reason. The court should have declined to entertain the argument. Its failure to do so was irresponsible.
The consequences are profound.
Repealing DRIPA won’t work
The decision has opened the entire statute book of British Columbia to judicial challenge for compliance with UNDRIP. In response, the B.C. government has indicated it will amend DRIPA. Some are arguing for its complete repeal.
This won’t work.
A repeal of 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, the courts will still have the last word.
The 2019 DRIPA legislation, and the later 2021 amendment to the Interpretation Act, were written by skilled legislative drafters to create a framework for advancing reconciliation initiatives, not to expose the entire corpus of provincial legislation to a new line of legal attack.
In a carefully reasoned analysis, the Gitxaala trial judge agreed that the legislative drafters had achieved this goal. So did the dissenting judge in the Court of Appeal. Against this weight of expertise and opinion, two judges of the Court expressed a contrary view.
Whether you agree with the majority’s analysis or not, the result was a near thing. It’s unfair to criticize government politicians after the fact for DRIPA when it was supported by the entire legislature and their expert lawyers said the act would not have the effect that a bare majority of the Court of Appeal has given it.
It’s unfair to criticize government politicians after the fact for DRIPA when it was supported by the entire legislature.
Against a backdrop of a legislative initiative that was intended to give government tools to advance the general project of reconciliation, it has to be wondered whether the Court of Appeal decision to effectively give the courts oversight over that work will help or hinder the cause.
Would it be better to spend more time negotiating the recognition and reconciliation of aboriginal rights, or litigating them?
Courts always say negotiation is the better path to reconciliation. Regrettably, their decisions often have the opposite effect.
Living in an uncertain judge-made world
When it comes to indigenous rights and claims we are living in a judge-made world.
We live in a world characterized both by the certainty that indigenous people have enforceable legal rights and the continuing uncertainty – with few exceptions – about where exactly such rights exist. Government must navigate how these two interact with the province’s custody, management and development of Crown lands and resources, amid the unpredictability of what the courts will do next.
This is the legal landscape on which the provincial government launches initiatives intended to achieve a measure of balance and certainty consistent with its obligation to recognize and respect aboriginal rights. Achieving balance 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.
Without these efforts, the result is not just uncertainty, it is conflict, obstruction and delay. The contention that the Premier of B.C. is somehow pursuing this cause as a captive of ideology may make for witty social media posts, but it is nonsense.
The Premier should be congratulated for his efforts, not criticized.
Those who take comfort from a narrow, denial-rooted approach to the recognition of aboriginal rights might pay more attention to history. British Columbia spent the first century of its existence denying the existence of aboriginal rights and title and refusing to acknowledge the colonial mistake of failing to deal fairly with the province’s original inhabitants.
For many years, denial manifested itself as the province’s consistent position in courts (and everywhere else). Beginning half a century ago, and in court case-after-court case since then, the province has repeatedly lost that argument.
Put simply, denial is not just a manifestation of intolerance, it’s a failed strategy. It’s also a sure path to conflict and uncertainty.
The path forward to economic and social progress is led by the recognition that aboriginal rights and title are meaningful realities, and in a world where it is judges, not premiers or opposition leaders, who have the last word on land and resource decisions, there will be no certainty without aboriginal inclusion.
Geoff Plant, OBC KC, is a litigator with Gall Legge Grant Zwack LLP 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. He was senior advisor for the Gordon Campbell government in land and resource negotiations with the Council of Haida Nation and the First Nations Leadership Council, and is credited with helping marshal all-party support for DRIPA in 2019. Plant is a 2022 Order of BC recipient.