NDP moves from judicial fight to generosity on indigenous land issues

Opinion: The New Democrats have changed their approach to Aboriginal title in the seven years since they took office

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The New Democrats have shifted their focus to Aboriginal title in the seven years since they took office. Witness the dramatically different results of two recent title claims.

Last month, a court awarded the Nuchatlaht First Nation about five per cent of the territory it had requested in a case in which the province successfully contested much of the claim.

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Then, a few days later, the New Democrats introduced legislation recognizing the Haida Nation’s Aboriginal title to 100 percent of its traditional territory of Haida Gwaii.

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The court decision is likely to be appealed. The Haida legislation sets the stage for two years of negotiations on a more permanent agreement.

There are other differences, too.

Taken together, however, they illustrate the NDP’s move from contesting the application of Aboriginal title to a preference for negotiating claims on more generous terms.

The Nuchatlaht First Nation went to court in 2017, the year the NDP took power, seeking recognition of its title to 230 square kilometers of Nootka Island off the west coast of Vancouver Island.

The province argued in court that the nation had not met the test of proving occupation of the island beyond the coast. In May 2023, British Columbia Supreme Court Justice Elliott Myers issued a ruling rejecting the broad title claim.

However, he invited the Nuchatlaht to return to court and seek title over a more limited territory.

The First Nation did it. On April 17 of this year, the judge recognized his title to several pieces of land, totaling 11 square kilometers. With some exceptions, the recognized territories were on a list presented by the province.

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Despite the narrowing of the claim, the verdict was recognized as a milestone: the first time a trial court in British Columbia recognized Aboriginal title to a First Nation. (The Tsilhqot’in title was recognized in the Supreme Court of Canada, following a successful appeal against a ruling by a lower court in British Columbia.)

The Nuchatlaht estimated the value of the land at $300 million, a significant profit for a population of 160 people.

However, Jack Woodward, the nation’s top lawyer, announced an appeal on several grounds.

Myers had acknowledged issues that a higher court might need to resolve.

“This case may demonstrate the peculiar difficulties of a coastal Aboriginal group meeting the current test for Aboriginal title, given the marine orientation of the culture,” the judge said.

“For example, there probably will not be trails between one coastal location and another, since the means of transportation was mainly the canoe. This may be indicative of the need to reconsider the test for Aboriginal title as it relates to coastal First Nations. “That would be up to a higher court to determine.”

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The reduced five per cent award of the claim is in line with the approach the New Democrats inherited from the BC Liberals and continued.

But while the Nuchatlaht case was still in court, the New Democrats set out new directives for government lawyers on civil litigation with indigenous peoples. These incorporated the principles of the United Nations Declaration on the Rights of Indigenous Peoples adopted by the legislature in 2019.

The directives discouraged litigation in favor of an approach that “promotes resolution, innovation and negotiated settlements,” treating indigenous claimants with “the utmost respect.”

The directives were read in court by a Nuchatlaht lawyer as he argued the province should take the same approach in that case. It didn’t happen.

The Haida settlement represents the new approach. The New Democrats decided to forego any judicial proceedings in a direct recognition of 100 percent of the Haida claim.

Both the agreement and the legislation include protections for fee simple (privately owned) lands. The New Democrats insist that this protection is permanent.

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But neither the agreement nor the legislation has the force of a treaty or a Supreme Court of Canada decision.

The NDP’s own briefing notes to current Indigenous Relations and Reconciliation Minister Murray Rankin defined Tsilhqot’in Aboriginal title as follows: “They effectively own the land. They have the right and responsibility to manage and control how it is used. Similar to private property. Aboriginal title means that the nation owns the lands and resources in the declared title area.”

If that’s what Aboriginal title meant to the Tsilhqot’in, why wouldn’t a court say the same thing about the Haida?

Those and other questions have the British Columbia United Opposition calling on the government to treat the Haida legislation as an “exposure” bill, for discussion before the election and enactment afterward.

Prime Minister David Eby has no intention of backing down from a deal he called “the honor of my career.” The bigger question is how he would address future Aboriginal title claims in a second term as prime minister.

The NDP’s preferred answer is that each claim is unique. He also prefers to be generous. I hope that a re-elected Eby government recognizes that much of what we call Crown land today is not Crown land at all. It is owned by one or another of the province’s 200 indigenous nations.

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