From the Fraser Institute

By Tegan Hill and Jason Clemens

Recent court decision adds to growing uncertainty in B.C.

A recent decision by the B.C. Court of Appeal further clouds private property rights and undermines investment in the province. Specifically, the court determined British Columbia’s mineral claims system did not follow the province’s Declaration on the Rights of Indigenous Peoples Act (DRIPA), which incorporated the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into law.

DRIPA (2019) requires the B.C. provincial government to “take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration,” meaning that all legislation in B.C. must conform to the principles outlined in the UNDRIP, which states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” The court’s ruling that the provincial government is not abiding by its own legislation (DRIPA) is the latest hit for the province in terms of ongoing uncertainty regarding property rights across the province, which will impose massive economic costs on all British Columbians until it’s resolved.

Consider the Cowichan First Nations legal case. The B.C. Supreme Court recently granted Aboriginal title to over 800 acres of land in Richmond valued at $2.5 billion, and where such aboriginal title is determined to exist, the court ruled that it is “prior and senior right” to other property interests. Put simply, the case puts private property at risk in BC.

The Eby government is appealing the case, yet it’s simultaneously negotiating bilateral agreements that similarly give First Nations priority rights over land swaths in B.C.

Consider Haida Gwaii, an archipelago on Canada’s west coast where around 5,000 people live—half of which are non-Haida. In April 2024, the Eby government granted Haida Aboriginal title over the land as part of a bilateral agreement. And while the agreement says private property must be honoured, private property rights are incompatible with communal Aboriginal title and it’s unclear how this conflict will be resolved.

Moreover, the Eby government attempted to pass legislation that effectively gives First Nations veto power over public land use in B.C. in 2024. While the legislation was rescinded after significant public backlash, the Eby’s government’s continued bilateral negotiations and proposed changes to other laws indicate it’s supportive of the general move towards Aboriginal title over significant parts of the province.

UNDRIP was adopted by the United Nations in 2007 and the B.C. Legislature adopted DRIPA in 2019. DRIPA requires that the government must secure “free, prior and informed consent” before approving projects on claimed land. Premier Eby is directly tied to DRIPA since he was the attorney general and actually drafted the interpretation memo.

The recent case centres around mineral exploration. Two First Nations groups—the Gitxaala Nation and the Ehattesaht First Nation—claimed the duty to consult was not adequately met and that granting mineral claims in their land “harms their cultural, spiritual, economic, and governance rights over their traditional territories,” which is inconsistent with DRIPA.

According to a 2024 survey of mining executives, more uncertainty is the last thing B.C. needs. Indeed, 76 per cent of respondents for B.C. said uncertainty around protected land and disputed land claims deters investment compared to only 29 per cent and 44 per cent (respectively) for Saskatchewan.

This series of developments have and will continue to fuel uncertainty in B.C. Who would move to or invest in B.C. when their private property, business, and investment is potentially at risk?

It’s no wonder British Columbians are leaving the province in droves. According to the B.C. Business Council, nearly 70,000 residents left B.C. for other parts of Canada last year. Similarly, business investment (inflation-adjusted) fell by nearly 5 per cent last year, exports and housing starts were down, and living standards in the province (as measured by per-person GDP) contracted in both 2023 and 2024.

B.C.’s recent developments will only worsen uncertainty in the province, deterring investment and leading to stagnant or even declining living standards for British Columbians. The Eby government should do its part to reaffirm private property rights, rather than continue fuelling uncertainty.

Tegan Hill

Director, Alberta Policy, Fraser Institute

Jason Clemens

Executive Vice President, Fraser Institute

By Caroline Elliott

BC government advisors believe ‘settlers’ must atone for Canada’s ‘original sin’

British Columbians are understandably perplexed as to why their provincial government is going headlong down an economically devastating, undemocratic and divisive “reconciliation” path that is so obviously counter to the public interest.

But the reason is simple, and it’s in plain view for anyone who cares to look. Premier David Eby has surrounded himself with advisors who fervently believe in a radical ideology that sees the drastic reshaping of our society as a moral imperative.

One advisor has even suggested that Canada’s formation is analogous to an “original sin,” and his recipe for redemption demands — in his own words — turbulence, rupture, sacrifice, pain, and the utter transformation of human affairs.

Understanding this alarming worldview is necessary for anyone concerned with where things are headed on the reconciliation front.

In early November, Eby came as close as he’s ever been to revealing the “original sin” mentality behind his agenda, stating in a video that changes resulting from B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) are “about correcting that original colonial mistake.”

This isn’t just a passing remark. It’s a tip of his hand exposing a disconcerting philosophy long held and frequently expressed by his hand-selected reconciliation advisors.

Doug White and Dr. Roshan Danesh both played key roles in expanding B.C.’s Indigenous policies.

White serves Eby directly as special counsel to the premier on reconciliation, providing guidance on Indigenous policy and the implementation of DRIPA, which is the B.C. government’s enabling legislation that gets its framework from the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Danesh served the government as a facilitator on reconciliation and wrote the report upon which the province’s interim approach to implementing DRIPA’s section 3 was based (this is a crucial section that requires the province to take “all measures necessary” to ensure consistency between the laws of B.C. and UNDRIP).

In addition, both White and Danesh have been officially acknowledged for playing an “absolutely fundamental role” in the Haida agreement. That agreement set a concerning policy precedent by recognizing Aboriginal title over private property in B.C. for the first time, a precursor to the B.C. Supreme Court’s seriously problematic Cowichan decision, which has created considerable uncertainty for property owners across the province.

Given the critical role played by White and Danesh in some of the province’s most consequential reconciliation initiatives, it’s important to understand their views on what reconciliation truly requires.

In a 2023 joint article titled “Rising to the Challenge of Reconciliation,” Danesh and White write of their desire to achieve “turbulent transition,” and of how “this moment in history is one of rupture.”

“We cannot build the new,” they write, “on infirm foundations.” Achieving true reconciliation “will require human affairs to be utterly reorganized. We must all be persistent and audacious in our efforts to advance and achieve this outcome.”

The changes involved in the “work of true reconciliation” are described in the article as analogous to “the struggle of a human being coming of age. At such a time, widely accepted practices and conventions, cherished attitudes and habits, are one by one being rendered obsolete.”

When asked about the article’s revolutionary language during legislative debates in 2024, then-minister of Indigenous relations Murray Rankin responded that the language in the article did “not strike (him) as extreme at all.” He went on to say reconciliation “is not for sissies.”

Danesh had previously expressed such views in a 2021 video on reconciliation saying, “this appeal to harmony in conditions of injustice is really just the veiling over of systems of oppression all over again. The hard work, the real work of building unity is not hanging out and getting along with each other and being understanding. It involves sacrifice. It involves structural, systemic, individual, collective societal change.” In the same video, he calls for “painful” change that ought to “reshap(e) the patterns of relations.”

In a paper for the Union of B.C. Indian Chiefs in 2019, White explicitly summons the notion of “original sin.” He explains that “transformative” federal and provincial programs “hold the potential to place the future on a different course — one which significantly diverges from the original sin of Canada.”

Danesh similarly speaks of “original sin,” and its consequences for Crown title and private property rights. In a 2020 paper  for B.C.’s First Nations Energy and Mining Council, he writes, “the history of colonialism has created what might be called the ‘domino effect’ among property rights in Canada. The original sin of ignoring Indigenous title, and as such denying Aboriginal title, knocks down much of what has been presumed to be aspects of Crown title in Canadian history, which then knocks down much of the foundation for certainty of fee simple property title,” — the standard form of private land ownership in Canada.

Radical perspectives on land ownership are not confined to Eby’s advisors. They are held by key elected members of his government as well.

In 2023, then-minister for mining Josie Osborne commented, “our approach to natural-resource development must be done in collaboration and partnership with the rightful owners of the land.”

Current Indigenous relations minister Spencer Chandra Herbert, in reference to 1.2 million acres of public land on the Sunshine Coast, has said, “if it’s (shíshálh Nation’s) land, they get to make decisions on it.”

And Eby’s previous Indigenous relations minister, Christine Boyle, is a staunch believer in the “LandBack” movement, an initiative that has been critical of Canada and the provinces’ “stubborn insistence… that they own the land” and that holds that change must involve “Canada ceding real jurisdiction to Indigenous peoples.”

Another B.C. NDP MLA, Rohini Arora, suggested in the legislature that non-Indigenous British Columbians are “settlers,” “colonizers,” and “uninvited guests,” to the applause of her colleagues.

Eby and his reconciliation advisors are fiercely committed to an atonement project of massive proportions for an “original sin” they believe mars the very conception of this country. Expiation will require turbulent and painful change that renders obsolete our “cherished habits.” And they will undertake “persistent and audacious” efforts aimed at a drastic reorganization of human affairs to achieve it.

Only when we understand the ideology underlying the B.C. government’s radical reconciliation agenda can we comprehend where things are going. And right now, we’re being zealously led towards an ungovernable province in pursuit of absolution.

Caroline Elliott is a senior fellow with the Aristotle Foundation for Public Policy. Photo: Legislative Assembly of British Columbia Reconciliation Action Plan 2024-2028.