Who runs B.C.?

British Columbia has ceded unprecedented power to First Nations. The fallout will do lasting damage to the province— and will hurt Mark Carney’s nation-building plans

On the road to reconciliation, Dave Eby has hit the ditch

Canada’s Nuchatlaht First Nation has won the jackpot. This April, a British Columbia judge awarded the tiny band title to more than 210 square kilometres of Nootka Island, a densely forested island just off the Pacific coast.

The Nuchatlaht are now in charge. From now on, the logging companies answer to them. They, and not the B.C. government, will have final authority over forestry, roads, resource extraction, conservation tourism, and future development. The revenue streams could be substantial.

The band has only 168 registered members, most of whom live off-island. Fewer than two dozen live on reserve in their traditional homeland. They now control a territory twice the size of Vancouver.

The deciding evidence turned on the existence of “culturally modified trees” — trees that had been stripped for bark for canoes and clothing, paddles and shelters. The judge said this was enough to prove that their ancestors had made long-term, widespread use of the land before it was claimed by the Crown in 1846. The ruling sets an important precedent, because it strengthens title claims to large tracts of territory based only on scattered evidence of indigenous land use.

“We now know that the courts are the place to go for First Nations if they want some kind of restoration of their aboriginal rights,” the Nuchatlaht’s lawyer said. “The negotiating table seems to not work, whereas this did.”

Because the Crown signed very few treaties in the territory that was to become British Columbia, First Nations’ claims to their ancestral lands remain largely unsettled. Negotiations over land claims have been long and torturous. So First Nations have increasingly resorted to the courts, which have also granted them significantly more power over major resource and infrastructure projects. And now, in a startling new ruling, the courts have given First Nations the right to challenge virtually every law and statute in the province.

Many voters now believe the people they elected to run their province are no longer in charge. They aren’t wrong.

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No one has been a more ardent champion of reconciliation than B.C.’s premier, David Eby. But now he is helpless to harness the furies he himself worked to unleash.

Mr. Eby was B.C.’s attorney-general in 2019, when the NDP government of the day declared allegiance to a sweeping new statute. The awkwardly named Declaration on the Rights of Indigenous People Act, DRIPA, mandated the province to align its laws with a United Nations proclamation known as UNDRIP, which stands for the United Nations Declaration on the Rights of Indigenous Peoples. (If you’re unfamiliar with these acronyms, rest assured that almost everybody else outside B.C. is too.)

UNDRIP is just the kind of lofty, vague, and totally impractical document the UN likes to churn out. “Indigenous people have the rights to the lands, territories and resources which they have traditionally owned, occupied, or otherwise used or acquired,” it says. This sounds great, until you start to think about it for a minute. What, exactly, would that look like? What would happen to the other people who currently own, occupy, or use those lands, territories and resources? What about their rights? The UN doesn’t say. UNDRIP says that states must obtain “free, prior and informed consent” for any decisions affecting aboriginal interests. But what does that mean? Does it mean cooperation? Or does it mean control?

Indigenous rights are already enshrined in Section 35 of Canada’s constitution. Nonetheless, back in 2016 the Trudeau government went ahead and embraced UNDRIP. Reconciliation was on everybody’s lips, and the politicians wanted to show they really, really meant it. UNDRIP is now recognized in Canadian federal law, and the federal government is also required to ensure that Canadian federal laws are consistent with UNDRIP—over time.

By adopting DRIPA, B.C. essentially layered an untested UN framework over its own existing laws. The public was reassured that DRIPA would create “no new rights.” It was intended as a signalling move, meant to demonstrate the government’s good intentions. The details would be worked out later.

Just to guarantee that things would unfold as planned, the B.C. government introduced an amendment to the Interpretation Act (a sort of instruction manual for reading legislation) that says all B.C. law must be interpreted in a manner consistent with DRIPA. This made it ironclad.

No one else in the world has ever tried this.

“Many people voted for DRIPA with good intentions,” says Robin Junger, a former chief treaty negotiator for the province. “But it’s going to be impossible to live up to the expectations of First Nations without fundamentally affecting the rights of third parties.”

He was right.

Another skeptic was Jody Wilson-Raybould, the former federal justice minister and indigenous leader. From the beginning, she warned that without concrete plans, clear legal definitions, and stepwise shifts in laws, policies and practices, UNDRIP and DRIPA were a recipe for disaster.

She too was right. Under the influence of DRIPA, the courts have released a torrent of decisions that have steadily strengthened First Nations’ negotiating power. Interpretations of the law are inconsistent and ever-shifting. Today, it’s hard for even legal experts to figure out what the law is.

“UNDRIP is not easily pinned down,” warns Dwight Newman, who is probably Canada’s foremost legal scholar on indigenous law. “And there were possibilities of highly variable interpretations in Canadian courts that are ill-equipped to consider these questions.”

Ms. Wilson-Raybould warned of other consequences as well. She pointed out that parts of DRIPA are in conflict with Canada’s own constitution. She cautioned that DRIPA was bound to exacerbate the tensions among Canada’s 600-odd indigenous communities, with their sharply overlapping aims and territorial claims. She warned that the new legislation would set back the work of genuine and meaningful reconciliation, and might create a public backlash. Her words proved prophetic.

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No place in Canada—and perhaps the world—is more committed to reconciliation than British Columbia. Visitors are struck (or perhaps bemused) by the gestures of atonement that appear everywhere. Public spaces are filled with indigenous art. Land acknowledgments are lengthy and ubiquitous. Parks and schools are being given indigenous names that no one can pronounce. Government information systems are being retrofitted to incorporate indigenous languages into official records and services—complete with special orthography and alphabets —even though only a tiny handful of people are able to read them. Government bureaucrats use signature blocks that express their appreciation for the privilege of living, working, and playing on unceded lands. The government’s writing advisers have directed civil servants to ditch the phrase “British Columbians,” because many indigenous people do not identify as citizens of the province. Instead, bureaucrats should use the term “people who live in British Columbia.”

Most people in the province believe that indigenous peoples deserve something for what they’ve lost—even if they can’t agree on exactly what. Support for reconciliation is strongest among the young, who’ve grown up being told that they live on stolen land.

But recent court decisions have shredded confidence in the government. For the first time, aboriginal title rights are colliding with private property rights.

Last August, after 11 years of court proceedings, B.C.’s Supreme Court ruled that the Cowichan Tribes hold aboriginal title to roughly 732 acres in south and east Richmond, on Vancouver Island. The problem is that other people live there now. Influenced by DRIPA, the court declared that aboriginal title is a “prior and senior right” to other property interests.

The Cowichan tribe said it wasn’t planning to seize anybody’s house, and a few self-appointed experts tried to reassure the public that the ruling didn’t really mean anything. But the public wasn’t reassured. They’ve heard that line before.

The Cowichan decision is being hotly disputed by the Musqueam Indian Band, which insists that the land is core Musqueam territory. Elsewhere, the Musqueam have laid claim to around 90 acres of prime redevelopment land in Vancouver, which they say was illegally expropriated a century ago. A judge agreed, but instead of handing back the land outright, pushed the parties to negotiate compensation. Now people are wondering how much other land in Vancouver is vulnerable to such claims.

Then came the real bombshell — the Gitxaala decision last December. The case involved a complaint that the province’s mineral claims system conflicts with DRIPA because miners don’t have to consult with indigenous groups before they stake a claim on indigenous land.

The B.C. Court of Appeal agreed. It also ruled that DRIPA has immediate legal effect. No more gradually. DRIPA supersedes all other laws and regulations in B.C.—as of now. What this means is that First Nations can challenge virtually all the laws and regulations in the province that they say are in violation of DRIPA.

Vaughn Palmer, the veteran Vancouver Sun columnist, summed it up this way: “Major governance changes are occurring through legal interpretation, executive agreements and opaque processes rather than open electoral debate.”

“The political and legal consequences of this will shape B.C. for years,” said veteran political scientist Ian Brodie.

The Gitxaala decision unleashed a torrent of new lawsuits—including some against projects that had already been approved— and threatens to bury the province in huge new liabilities.

Mr. Eby panicked. He called the ruling “an existential threat.” In order to buy time, he announced a plan to suspend parts of DRIPA temporarily. The backlash was ferocious. Indigenous leaders threatened that if he changed one comma, they would scorch the earth. Members of his own caucus threatened to revolt. He caved. He even issued a joint statement with the First Nations Leadership Council — a powerful lobby group — resolving to work together from now on. It was a humiliating climbdown.

“Over six terms of working for the provincial government, I have never see this level of ineptitude and incompetence,” said Geoffrey Moyse, perhaps the most senior aboriginal law expert in the province.

The Gitxaala ruling means even more delays and uncertainty for major projects, including new transmission corridors, marine-terminal expansions, forestry development, and critical- minerals mining. Investors will shy away. “The number of people who choose not to invest in B.C. is growing,” Mr. Junger , the former chief negotiator, says. “They take a look and they say ‘Are you kidding me?’”

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More than 200 of Canada’s 600 First Nations are located in B.C. Around 300,000 of the province’s 5.7 million people —six per cent— identify as indigenous. But they are hardly a unified force. Each community has its own leadership, agenda and demands. Some groups want to be partners in development, and others want to block it. Internal dissension (elected chiefs vs. hereditary chiefs, for instance) is common. Many First Nations are suing each other over conflicting claims. Nobody speaks for them all.

B.C. is already notorious as the province that can’t get anything built. The Trans Mountain Expansion took 12 years to complete, and was only finished after the federal government bought it from its fed-up owner. The concept of “meaningful consultation” has been expanded to mean you can never do anything without indigenous consent.

“Most government officials would say that the requirement to gain consent is not a veto,” one former senior bureaucrat told me. “But it’s very close to a veto, and it looks like a veto to the average person.”

A long succession of governments have brought this on themselves.

For one, they underestimated the complications of having 200 different negotiating partners. “The government tried to create a hierarchy where there was one single power or decision point,” says one former senior bureaucrat. “But First Nations aren’t prepared to sign on to that.”

Desperate to keep everybody on side, governments avoided tough decisions. “If the test of reconciliation is that everybody’s happy, then you’ll be consulting until you’re blue in the face,” another insider says. “We delay, delay, delay regulatory decisions because we’re afraid a First Nation will be unhappy.”

Many people think the public has been largely kept in the dark, and they are right. One reason is the fear of what the public might actually say. “They thought, ‘We’ll get all kinds of racist comments, and so on—so we’ll just do it and people will get on board.’”

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For the current government, the timing couldn’t be worse. The province is is deep in debt and desperately needs economic growth. It’s so broke that it’s cancelling major hospital projects.

But the chiefs with the most influence won’t budge. They regard DRIPA as a cornerstone of reconciliation, and they have framed any alterations as a betrayal. Terry Teegee, who is regional chief of the B.C. Assembly of First Nations, argues that DRIPA is the only way that First Nations will be accepted as truly equal partners. He insists that the current troubles would have been avoided if the government had fully implemented DRIPA in the first place.

DRIPA could be repealed or modified. But that would take a lot of raw political courage. The government is appealing the ruling to the Supreme Court of Canada, which may or may not hear the case.

Meantime, U.S. tribes in Washington State and Alaska are planning to use DRIPA to claim their own historic rights in B.C. Mr. Eby will have to keep lawyering up, perhaps forever. His popularity has plunged to rock bottom. If an election were held today, polls say the Conservatives would win a solid majority—even though they are currently leaderless. Fifty-three per cent of people polled now say that DRIPA goes “too far.”

The biggest question in many people’s minds is no longer how to achieve social justice. It’s democracy. What happens to democracy when your government has handed veto power over major parts of its economy to a tiny group of unelected chiefs who represent just six per cent of the population? Who invited the UN to make the rules?

The rest of Canada should listen up. Federal and provincial courts across the country are turning DRIPA’s uncompromising edicts into practical legal constraints on government decision-making.

This means big trouble for Mark Carney’s fast-track nation-building agenda. The prime minister is right when he says we desperately need to develop our infrastructure—not only for our economy, but for national security. The trouble is that a lot of that infrastructure is planned for B.C. Say goodbye to the fast track. And don’t bet on a new pipeline to the West Coast any time soon.

This crisis is a master class in how even the best intentions can go awry. The losers are the more than 5 million people who live in the province. And the biggest losers are those who live at the bottom of the ladder. They’re the ones who suffer most when growth dries up and jobs and opportunities and health-care funding disappear.

The best intentions of a naive and disastrously inept government have driven the province into the ditch. This is not the road to reconciliation.