Indigenous
B.C.’s plan to ‘reconcile’ by giving First Nations a veto on land use
From the MacDonald Laurier Institute
By Bruce Pardy
UNDRIP-inspired land law reforms are poised to turn province into an untenable host for mining, forestry and much more.
We live in strange times. A new generation of political leaders seems determined to cripple their own societies. Prime Minister Justin Trudeau, of course, comes to mind. But in Canada, he is not alone. In British Columbia, NDP Premier David Eby is preparing to bring his province to its knees.
The B.C. government plans to share management of Crown land with First Nations. The scheme will apply not to limited sections of public land here and there, but across the province. The government quietly opened public consultations on the proposal last week. According to the scant materials, the government will amend the B.C. Land Act to incorporate agreements with Indigenous governing bodies.
These agreements will empower B.C.’s hundreds of First Nations to make joint decisions with the minister responsible for the Land Act, the main law under which the provincial government grants leases, licences, permits and rights-of-way over Crown land. That means that First Nations will have a veto over how most of B.C. is used. Joint management can be expected to apply to mining, hydro projects, farming, forestry, docks and communication towers, just to start. Activities at the heart of B.C.’s economy will be at risk.
In 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP states, among other things, that Indigenous people own the land and resources of the countries in which they live. They have “the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired … to own, use, develop and control.”
At the time, Canada sensibly voted “no,” along with the United States, Australia and New Zealand. Eleven countries abstained. In 2016, Trudeau’s government reversed Canada’s objection.
As a General Assembly declaration, UNDRIP is not binding in international law nor enforceable in domestic courts. But in 2019, under the leadership of Eby’s predecessor John Horgan, the B.C. legislature passed Bill 41, the Declaration on the Rights of Indigenous Peoples Act. The act requires the government of B.C. to “take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.” Eby’s joint management plan is the next step in this project.
Long before UNDRIP, the Supreme Court of Canada created a constitutional “duty to consult” with Aboriginal peoples. The court said that the “honour of the Crown” governs the relationship between the government and Aboriginal people. The Crown’s fiduciary duties include a duty to consult whenever proposed action may adversely affect established or asserted Aboriginal rights under Section 35 of the Constitution. This duty is notoriously uncertain, onerous and time-consuming. It has become an albatross around the neck of the Canadian resource industry. The courts seem unable to specify what the duty to consult requires, except after the fact.
Now, the B.C. government aims to make things even more unpredictable. Whatever the contours of the right to be consulted, the Supreme Court at least has been clear that it does not constitute a veto. Eby will create one.
Shortly before the B.C. legislature passed Bill 41 in November 2019, the Continuing Legal Education Society of British Columbia sponsored an Aboriginal Law Conference featuring several Indigenous proponents of the bill. They promised that the new law would render the province unrecognizable.
It will “set up a whole new norm,“ “give teeth to (UNDRIP),” and move the province away, if “not fully,” from the Westminster model of governance. The veto to be conferred on Indigenous interest groups, they said, will mean that “consent will not be given very often, if at all.”
“We’re not talking small changes; we’re talking big changes,” one speaker suggested, adding that money provided by the government so far hasn’t been enough.
“Compensation for sacred sites, for lands taken, for relocation … it’s going to be an overwhelming number of compensation claims … and so I’m hoping that the province is ready for that…. Life (in B.C.) can and will change.”
For many, it is likely to change for the worse. B.C. could become an untenable host for land-based, resource-related enterprise. Impenetrable layers of red tape would entangle applications for leases and licenses. The price for First Nations approvals could be an increasing share of royalties and kickbacks, without which consent will be refused. Both governments and First Nations will siphon an ever-larger piece of a shrinking pie.
The government’s timeline is short. Written submissions will be accepted until the end of March, and anyone giving feedback will be limited by how little information the B.C. government has offered in the consultation. Bureaucrats will begin drafting amendments to the Land Act in early February, and the government plans to introduce a bill in April or May.
If you are feeling grateful not to live in B.C., don’t count your chickens. In 2021, Parliament passed its own version of B.C.’s Bill 41, the federal United Nations Declaration on the Rights of Indigenous Peoples Act. It requires the federal government to “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.” An action plan outlining more than 100 specific measures was released in 2023.
In a speech to the B.C. Business Council in 2016, I argued that our leaders could not do a better job of preventing Canadian business from succeeding in the global economy. I underestimated them. Their determination and ingenuity know no bounds.
Bruce Pardy is executive director of Rights Probe, professor of law at Queen’s University, and senior fellow with the Macdonald-Laurier Institute.
From the Frontier Centre for Public Policy
The First Nation prompted an international outcry in 2021 when it announced the discovery of 215 children’s graves hidden at the Kamloops Residential School. It said remains were found using ground penetrating radar.
Cabinet at the time lowered the Peace Tower flag at half mast for 161 days, approved $3.1 million for a national Residential Schools Student Death Register and another $238.8 million for a Residential Schools Missing Children Community Support Fund.
The Department of Crown-Indigenous Relations has confirmed it spent millions to uncover the “heartbreaking truth” of unmarked Indian Residential School graves in Kamloops, B.C. No remains have been recovered to date and no accounting of what became of the $7.9 million has been disclosed.
“The community had received $7.9 million for field work, records searches and to secure the Residential School grounds,” said Carolane Gratton, spokesperson for the department. “Details of initiatives taken by Tk’emlups te Secwepemc First Nation are best directed to the community.”
The department has not released financial accounts under the Access To Information Act. The First Nation said in a statement it “continues to grieve children that are in our care and are focused on the scientific work that needs to be done” but would not discuss the $7.9 million.
The 2021 funding was to document the “heartbreaking truth,” according to a 2022 department briefing note. “Our thoughts are with survivors, their families and communities as the heartbreaking truth about Residential Schools’ unmarked burials continues to be unveiled,” said the note.
“Funding is available to support communities, survivors and their families on their healing journey through researching, locating and memorializing those children who died while attending Indian Residential Schools,” said the note Indian Residential School Sites: Unmarked Burials.
“If pressed on Tk’emlups te Secwepemc Kamloops Indian Residential School site, the Government of Canada has provided $7.9 million over two years to the Tk’emlups te Secwepemc Nation to support the community in conducting this important work,” said the note.
The First Nation prompted an international outcry in 2021 when it announced the discovery of 215 children’s graves hidden at the Kamloops Residential School. It said remains were found using ground penetrating radar.
Cabinet at the time lowered the Peace Tower flag at half mast for 161 days, approved $3.1 million for a national Residential Schools Student Death Register and another $238.8 million for a Residential Schools Missing Children Community Support Fund. The Fund expires in 2025.
“I think Canadians have seen with horror those unmarked graves across the country and realize that what happened decades ago isn’t part of our history, it is an irrefutable part of our present,” Prime Minister Justin Trudeau earlier told reporters.
No remains have been recovered at the Kamloops site to date. A Senate committee in a 2023 report described questions regarding documentation of the 215 graves as “Residential School denialism.”
“Denialism serves to distract people from the horrific consequences of Residential Schools and the realities of missing children, burials and unmarked graves,” said the Senate Indigenous peoples committee report Honouring The Children Who Never Came Home. It recommended “the Government of Canada take every action necessary to combat the rise of Residential School denialism.”
Published with kind permission from Blacklock’s Reporter. First published here.
Blacklock’s Reporter (founded October 2012) is an Ottawa-based Internet publication covering Canadian government administration.
From the Frontier Centre for Public Policy
Grave Error: How The Media Misled Us (and the Truth about Residential Schools) edited by C.P. Champion and Tom Flanagan, Truth North and Dorchester Review, 343pp, $21.99) is a companion volume to Frontier’s From Truth Comes Reconciliation, which was published in 2021 (second edition is forthcoming). The two reviews published here are by Colin Alexander and Peter Best. The book demonstrates that there is no forensic evidence of Indian Residential School children that have been murdered and buried in residential school yards. There are a number of reasons for not believing the claim that children were murdered in these schools. Canadians are anxious to know the truth about the schools, and this book along with Frontier’s book go a long way to dispel the myths that have developed about the murder of residential school children. The book has been a top seller on Amazon since it was published in early January 2024.
This scholarly book of essays demolishes the narrative that any children went missing from Indian residential schools (IRS), let alone thousands, or that there are mass graves. Grave Error, in fact, debunks what essayist Jonathan Kay calls “a media-fuelled social panic over unmarked graves.” Mainstream media around the world—not just in Canada—ran with this press release issued on May 27, 2021:
This past weekend, with the help of a ground penetrating radar [GPR] specialist, the stark truth of the preliminary findings became known – the confirmation of the remains of 215 children who were students at the Kamloops Indian Residential School [KRS]. …
To our knowledge, these missing children are undocumented deaths,” stated Kukpi7 Rosanne Casimir. “Some were as young as three years old. …
Mainstream news media and politicians took the press release to heart, with Prime Minister Justin Trudeau lowering flags on federal buildings to half-mast for six long months. So debauched have the Enlightenment’s principles of inquiry become, along with those of responsible journalism, that it took outsiders to question the truth of this release.
Yes, Ground Penetrating Radar (GPR) found disturbed ground in the orchard near the school. That is because the land had buried drainage tiles from a septic system that had been installed in 1924. In any case, except for orphans and those whose upbringing was beyond their parents’ capacity, the IRS required a minimum age of six for admission.
No children were murdered and buried surreptitiously at night. Schools were paid on a headcount of children, so there was not a single name unaccounted for. There is a death certificate for every death, with burials either in the nearby cemetery or returned to their reserves. TB and other communicable diseases rampant everywhere caused most IRS deaths a century ago. Since the introduction of antibiotics, the death toll has been much lower. Many graves in recognized cemeteries are unmarked because the customarily used wooden crosses deteriorated over time. Despite that, in December 2021, Canadian Press called unmarked graves the story of the year!
Len Marchand’s autobiography, Breaking the Trail, provides an antidote for the horror stories at KRS. A former attendee during the time of the alleged murders and burials, he became Canada’s first Indigenous cabinet minister. The worst he says of his time there was that meals included mushy potatoes.
Essayist Ian Gentles says the juggernaut of misinformation began with the CBC program The Journal on October 30, 1990. Interviewed by Barbara Frum, Grand Chief of the Assembly of First Nations, Phil Fontaine, said he had been physically and sexually abused at his school. This led to a tsunami of former IRS attendees asserting similar allegations. Unfortunately, Ms. Frum did not ask who perpetrated the abuse, whether staff or fellow students. Or why he did not make a complaint to the police. I emailed Mr. Fontaine asking those questions but without receiving an answer.
Some essayists accept the proposition that there were real atrocities. I am not sure they were widespread. There were only a few successful prosecutions reported by the Truth and Reconciliation Commission. There are probably some abuses at boarding schools. Was it really an atrocity to cut an IRS attendee’s hair on arrival or to exchange a uniform for an orange shirt? Essayist and former staff member at Stringer Hall in Inuvik, Rodney Clifton, has described children on their return after the summer break with their families. They were often in poor physical condition, and some were still wearing the clothing, unwashed in the meantime, that they left the school with.
Essayist Tom Flanagan scores a bull’s-eye when quoting John Ioannidis, medical researcher at Stanford University: “The greater the financial and other interests and prejudices in a scientific field, the less likely the research findings are to be true.” With money almost unlimited for Indigenous issues, a multi-billion-dollar industry has grown out of pleading for money and telling Indigenous youth to feel sorry for themselves. By extension, the industry has prospered from laying guilt on schoolchildren and taxpayers. As shown in Lonely Death of an Ojibwa Boy by Robert MacBain, that includes what I construe to be a fraud, the Gord Downie and Chanie Wenjack charity.
I also disagree with essayists saying the Indigenous were dealt a bad hand, let alone that they need new treaties. What about the previously downtrodden Asian Canadians who have surpassed their white counterparts in incomes? Yes, Canada welcomed Indians into the armed forces for the Boer Wars and the two World Wars, only to treat them like dirt when the wars ended. But today there has been a role-reversal. Now Indigenous leaders can say whatever they want, and no one calls them out on saying outrageous things.
To me, the failure of Canada’s Indigenous policy derives from the excesses of the welfare state which, since the demise of the fur trade, destroyed self-reliance and work ethic—Indigenous cultures were destroyed, if you will. Now Canadians kowtow to demands for renewed tribalism and self-determination resembling South Africa’s apartheid. That would give leaders prestige and money for doing little. For followers, it connotes marginalization and second-class citizenship. No one is considering the needs of next generations living in violence-wracked settlements having no economic reason to exist, and in urban slums. It eludes notice that those who are educated and skilled and engaged in or preparing for rewarding employment seldom become addicts or commit suicide, and they seldom go to jail.
The billions paid out for the IRS and mass graves hoaxes are not delivering acceptable housing or any other help that works. I know an unemployed and all but unemployable Inuk who got a cheque for $95,000 in April 2023. By July he had blown it all and was again scrounging for cigarettes. Many billions add to GDP and salve a nation’s conscience. But enriching prostitutes and drug dealers does not address real needs.
That said, there are templates, notably in Asia, for raising Third World peoples into the First World in a single generation. I recommend Grave Error as a starting point for radically different thinking about what needs to be done to help Indigenous Canadians succeed in our country.
Colin Alexander was publisher of the Yellowknife News of the North for many years, and the advisor on education for Ontario’s Royal Commission on the Northern Environment. His latest book is Justice on Trial: Jordan Peterson’s case and others show we need to fix a broken legal system.
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