The government is steadily eroding public trust to further an agenda that’s already viewed with deep skepticism

The B.C. government’s secretive and exclusionary approach to “reconciliation” took a sordid turn recently, with the ministers of Indigenous relations and forests both caught in blatant and readily disprovable attempts to mislead the public. Meanwhile, British Columbians have yet again been left on the outside as huge tracts of land are signed away, one-sided “consultations” are held in secret and the public interest is ignored.

On Sept. 5, the B.C. Supreme Court issued an order granting Aboriginal title over the entirety of Haida Gwaii, including private property and all Crown land. The declaration was supported by the B.C. and federal governments.

While the Haida Nation have openly celebrated the monumental nature of the judicial order, Victoria and Ottawa have yet to issue any official statement at all, apparently preferring to keep the public in the dark about their crucial role in the matter. Haida Gwaii property owners and other directly impacted stakeholders do not appear to have been represented at all in these proceedings.

The judicial order is based on B.C.’s Haida agreement (and a similar federal agreement signed last year), which was approved in a referendum held only for Haida members, despite the fact that half the residents of the region are non-Haida.

The agreements’ recognition of Aboriginal title over the entirety of Haida Gwaii, including private property, has raised major concerns based on its potential impacts on democracy, the constraints placed on the ability of future governments to act in the public interest and uncertainty around private property rights. While there have been assurances made that private property interests will be honoured by the Haida Nation, significant worries remain.

As Aboriginal law experts Thomas Isaac and Mackenzie Hayden explained, “The rights in land which flow from both a fee simple interest and Aboriginal title interest … include exclusive rights to use, occupy and manage lands. The two interests are fundamentally irreconcilable over the same piece of land.” Moreover, Aboriginal title is protected by the Constitution, while private property rights are not.

The issue is of even greater concern today than when the agreements were signed, given the B.C. Supreme Court’s recent Cowichan decision recognizing Aboriginal title over part of the city of Richmond. In that case, the judge troublingly stated that certain fee simple land titles — the typical form of private property ownership in Canada — in the area are “defective and invalid,” on the basis that the Crown had no authority to issue them in the first place.

As constitutional law professor Dwight Newman pointed out, if past fee simple grants in areas of Aboriginal title claims are inherently invalid, “then the judgment has a much broader implication that any privately owned lands in B.C. may be subject to being overridden by Aboriginal

This ought to have given the federal and provincial governments ample reason to rethink their support for a judicial declaration of Aboriginal title in the Haida case. Instead, they persevered. And now, with Aboriginal title officially recognized by the court, the problematic provisions of the Haida agreements have graduated to an effectively irreversible right under the Constitution.

Given the massive implications, one might think the federal or provincial governments would have found time to notify the public. However, despite scores of news releases issued between them since the declaration was made, not a single one mentions the judgment. If not for the Haida Nation news release, citizens would be totally in the dark.

Worse yet, in a belated response to growing pressure on the issue, Indigenous Relations Minister Spencer Chandra Herbert attempted a “nothing-to-see-here” post on social media. But in doing so, he knowingly attempted to mislead the public — and got caught.

“On Friday, the B.C. Supreme Court officially accepted B.C. and Canada’s historic agreements negotiated with the Council of the Haida Nation. In April 2024, all parties present in the Legislature unanimously supported the ‘Rising Tide’ legislation, rightly celebrated by all,” read his post (with the comments turned off lest he hear what British Columbians really think).

The truth is that the legislation adopting the Haida agreement was not “unanimously supported” — not even close. In fact, the official record shows it was opposed by 25 MLAs, something the minister knows full well, given that he was not only present for the final vote, but was fully aware of the outcomes of bills in his then-role as deputy speaker. He even personally presided as committee chair during some of the contentious debates.

In a similar incident, Forestry Minister Ravi Parmar was caught in a separate effort to mislead the public on a related file.

Under fire for its secrecy around proposed UNDRIP-related amendments to the Heritage Conservation Act, the B.C. government was called out by Vancouver Sun columnist Vaughn Palmer for forcing local government officials to sign non-disclosure agreements before they could access the full scope of the proposed changes. Parmar’s vigorous denials of these NDAs were exposed as misleading given that Palmer had been shown a copy of one of them.

These are but the latest examples of how B.C.’s NDP government is steadily eroding public trust in a reconciliation agenda that’s already viewed with deep skepticism.

Caroline Elliott is a senior fellow with the Aristotle Foundation for Public Policy and sits on the board of B.C.’s Public Land Use Society. Photo: CBC.