Richmond, BC: Who owns it?

There is a storm brewing in British Columbia over Indigenous rights vs. non-Indigenous rights; over sovereign land title vs. fee simple property title; over the law vs. politics; over unceded vs. settler BC. The storm has been ominously gathering, to the point where it might eventuate in a serious breakdown of the reconciliation process with BC’s First Nations, which would have grave implications for deterioration of Indigenous relations across the country. It might not come to that – outcomes are still uncertain – but it is already a sad story of how (mostly) good intentions can go awry when they clash with recalcitrant political realities. We have all heard where roads paved with good intentions can lead. Good intentions are sometimes not enough.

BC is a nexus for Indigenous relations in Canada. Its past behaviour toward its Native inhabitants, in the 19th and much of the 20th century, was in many ways worse than what occurred in the rest of the country. In particular, its obdurate refusal until very recently to put relations on a treaty basis left First Nations entirely at the mercy of the Indian Act and provincial law: “rule by law” rather than the celebrated “rule of law” claimed by non-Native Canadians.¹

But it was in BC that Native resistance via legal action precipitated a series of court decisions (Calder, Sparrow, Delgamuukw, Haida and Tsilhqot’in) that have dramatically transformed Indigenous legal and constitutional rights and empowered First Nations in their negotiations with federal and provincial governments across Canada. BC began the long-delayed process of treaty-making with the landmark Nisga’a treaty in 2000, establishing the Nisga’a Nation as a sovereign self-governing entity freed from the Indian Act. This was followed by the equally significant 2024 Haida Nation agreement establishing self-government and Aboriginal title over Haida Gwaii.

The national trauma resulting from the dark revelations of the horrors of residential schools led then–Prime Minister Stephen Harper to offer an official apology and compensation to the victims. The Truth and Reconciliation Commission gave sanction to the idea of reconciliation as a national goal, symbolized in the land acknowledgements preceding public meetings across the country. Of course, words and expressions of good intent are only that, but governments at all levels have directed more resources to right historic inequalities and injustices on reserves – never enough, to be sure, but at least indicating things are moving in the right direction, given the centuries of wrong direction in the past.

The deeper point behind improved intentions is the force of the law embodied in the court decisions. Turning back politically toward the discredited past would be not only morally wrong but pointless: wasting taxpayer dollars on lawyers to carry on legal battles sure to be finally lost. In the process ill-will and racial tensions would be generated that would make everyone worse off, to no discernible benefit to anyone.

This seemed a reasonable description of the situation until two recent BC court decisions on Indigenous rights had the perverse effect of questioning what one might call the prevailing Whig interpretation of progressive betterment on the Indigenous file.

In the 2025 Cowichan Tribes v. Canada case, the BC Supreme Court ruled that the Cowichan Tribes hold Aboriginal title to approximately 296 hectares of land in Richmond, BC – stolen, in effect, by successive BC and Canadian governments. Along with public holdings, this parcel includes land held under “fee simple title” – the kind of property rights that homeowners hold everywhere else. For the first time, a Canadian court has recognized Aboriginal title on lands as prior to fee simple holding. It was quickly, and convincingly, argued that this decision in no way constituted a threat to actual existing fee simple titles: the Cowichan had no intention of displacing Mom and Pop from their family home. The case of the recent Haida treaty was cited, where a commitment from the Haida Council not to touch existing non-Native property had been negotiated as part of the settlement.

So far, so good, it might seem. Yet a visibly rattled BC Premier David Eby signalled the province’s intention to appeal the Cowichan decision, which will probably be adjudicated finally in the Supreme Court of Canada. This might seem a surprising move for an NDP government which had prided itself on its record of advancing Indigenous relations. Clearly, the concern of the Eby government rests less on questioning the judicial reasoning than on alarm over the political consequences.

In a similar contemporary case (J.D. Irving, Limited et al. v. Wolastoqey Nation), the New Brunswick Court of Appeal has come to the opposite conclusion, with a “finding” of Aboriginal title that stops short of the binding “declaration” of prior Aboriginal title in Cowichan that would legally supersede fee simple property title. Unlike the BC decision, which referred vaguely to “negotiation” as a route to appeasing private landowner fears, the New Brunswick court ventured into political territory by declaring that granting exclusive possession over private lands to an Indigenous nation would sound the “death knell of reconciliation.” In late May the Supreme Court refused to consider an appeal by the Wolastoqey against this decision, which might indicate reasonable chances for a BC appeal against Cowichan.

Whatever the final judicial outcome, the BC debate over Cowichan has revealed ominous political fissures over the relationship of First Nations to non-Native society, with property rights a hot button setting people off into hostile warring camps. Just how controversial the issue is became apparent as early as 2024 when proposed amendments to the BC Land Act that would have permitted First Nations partnership with the province in decisions regarding Crown lands were withdrawn in the face of a firestorm of criticism that this would give a veto to Natives over land use and private property. Misinformation was rife, stirred enthusiastically by opposition politicians, but the government judged the pressure too great to proceed further. The minister responsible for the amendments, Nathan Cullen, went down to defeat in his own constituency in the subsequent provincial election at the hands of a far-right Conservative who proudly flagged her previous support for the Freedom Convoy that occupied downtown Ottawa in 2022. The campaign was strongly coloured by anti-Indigenous fearmongering.

The Cowichan decision has inflamed this sentiment, with the Conservative Party, which had come close to displacing the NDP in the 2024 election, seizing on the issue of endangered property rights with alacrity. Assurances by present and former attorneys general (both NDP and BC Liberal) that such fears are unsubstantiated have had little or no impact when the Conservatives sense a winning partisan slogan. At the same time, Eby’s response has drawn heated criticism from First Nations as faint-hearted, if not a betrayal.

But here’s the thing. Fears are not entirely unfounded. When the province’s high court declares that Aboriginal title prevails over fee simple, in a province where it is estimated that 95 per cent of the land is unceded territory, and the Tsilhqot’in case gives precedent for generous interpretation of Native land claims, all the assurances in the world will not calm down the underlying anxiety that the family home may be endangered.

Of course the Conservatives will run with this, and it is no surprise that the NDP will try to limit partisan harm. That’s the politics. The law in its majesty rules and awards rights precedence to one side. Politics would see give and take, compromise and negotiation to resolve differences, hopefully to make sure that winning and losing are both mitigated in the interests of social peace. The legal route is more austere but ignores the political fallout.

On top of this, another BC court decision on Indigenous rights landed with explosive force at the end of 2025. The BC Court of Appeal decision in Gitxaala v. British Columbia (Chief Gold Commissioner) interpreted the BC Declaration on the Rights of Indigenous Peoples Act (DRIPA) to mean that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) operates immediately as an interpretive standard across all provincial laws. A huge political uproar ensued, with the Conservatives pouncing on the decision as effectively amounting to a declaration of war on non-Native British Columbia, providing a Native veto on BC laws. Premier Eby publicly professed that he was appalled at the implications. His reaction was not surprising given that in this case the NDP was politically collared: DRIPA was an NDP initiative, introduced and steered through the legislature by then–Attorney General David Eby, making BC the first province to enact the UN declaration into law (the Trudeau Liberal government in Ottawa later followed).

Why was the Eby NDP running away from its own creation? A bit of history casts some light. When DRIPA was first enacted, the NDP, then under the late John Horgan, foresaw a period of discussion with First Nations over what they anticipated in bringing BC laws into compliance with the UN declaration on Indigenous rights. The Minister for Indigenous Relations at the time, Murray Rankin, began a series of meetings with First Nations without publicity to get a sense of what laws might be on the agenda for change. This process included negotiation, since non-Natives and non-Native interests that could be affected by altered laws had to be considered as well. It might have looked like a prospect of gradual transformation of the colonial-era legal system to one that was more in keeping with the new era of reconciliation – a process that was manageable for a province with responsibility to all its citizens.

It was not to be. Some First Nations found the process too slow, bureaucratic and unresponsive, so they went to court. Some 25 cases citing DRIPA are in process, Gitxaala being the first decided. The BC Supreme Court ruled in favour of the Gitxaala on the specific issue of mineral rights on Crown lands, on the grounds that the regulations violated section 35 of the Canadian Constitution, but also ruled that DRIPA did not implement UNDRIP into BC laws, that being a matter for legislative action by the provincial government. The Gitxaala were not satisfied with the specific remedy on mineral rights and appealed to the BC Court of Appeal on the broader DRIPA question.

That court, by a two-to-one majority, ruled out negotiation and compromise in DRIPA implementation. Instead it argued that DRIPA incorporates UNDRIP into provincial law “with immediate effect.” That is to say, UNDRIP applies automatically and immediately to all BC laws. The dissenting judge argued that while DRIPA provides a mandate for the government to bring BC laws into alignment with the UN declaration, calling on judges to adjudicate claims of inconsistency between UNDRIP and BC laws “would take the court outside its proper role in our constitutional democracy.”

The former federal Justice Minister Jody Wilson-Raybould has suggested that it was a mistake to simply enact UNDRIP at the provincial and federal level without at the same time providing a prior administrative framework for implementation. Gitxaala could pose a practical administrative nightmare for the province. The majority decision ignored the political fallout, but the provincial government cannot. It appealed and the Supreme Court of Canada has agreed to hear the case. To the Gitxaala, appealing the decision reveals a government attempting “to deny accountability for its promises to align laws with Indigenous human rights standards.” It might better be seen as a matter of a government attempting to take back from the judges political and administrative responsibility for aligning BC laws with Indigenous rights.

The political fallout is more toxic than supporters of the Gitxaala decision admit. The NDP is trying to figure out how best to implement DRIPA, while the critics, such as the Conservatives and the Fraser Institute, are opposed to DRIPA and UNDRIP altogether, viewing both as dire threats to non-Native British Columbians. One of the charges against UNDRIP has always been that it would give First Nations a veto over development projects approved by governments. This could hardly be the case in practice since every major energy development project in BC has divided affected First Nations into supporters and opponents. For example, the Ksi Lissims LNG pipeline and refinery project (on the federal major projects priority list) is co-owned by the Nisga’a Nation and supported by others on the route, but opposed by some bands. Could the opponents exercise a veto under DRIPA? Obviously not, but alarm about DRIPA vetoes is rampant among critics.

The Conservatives now have the NDP, which had been awarded indirect blame for Cowichan, directly in their sights. Eby reacted first by trying to look decisive. He would bring in amendments to DRIPA to counter the alarming implications. His government, with its fragile one-seat majority, would treat passage of the amendments as a confidence vote. First Nations were in an uproar, viewing this as a surrender by the NDP of its commitment to reconciliation. A former Indigenous Green MLA wrote an op-ed that described Eby as the modern-day equivalent of Joseph Trutch, the archvillainous racist 19th-century Lieutenant Governor of BC who deliberately sabotaged the treaty process and actively directed the colonial repression of Native peoples (a street near my Victoria home was named Trutch but has now been re-named Su’it, or “Truth” in the Native Lekwungen language).

This depiction of Eby is obviously ridiculously exaggerated and unfair, but the point is that the Premier is now being assailed from all sides. When one Indigenous MLA, who is also the wife of the Grand Chief of the BC First Nations, told Eby he could not have her vote, he then retreated from making it a confidence vote but spoke instead of “suspending” parts of DRIPA to permit further talks. Then the suspension was suspended with a vague commitment to carry on negotiations with First Nations over how to proceed. It is a full-scale political disaster for the Premier, but he is in the unenviable position of being damned if he does and damned if he doesn’t.

Not surprisingly, the Conservatives are now slavering at their electoral prospects. An election is not required until 2028, but as the NDP stumbles and critics attack from every direction, its paper-thin majority is in peril. Further NDP erosion can mean only one thing: a Conservative government in BC. This is where things could take a much darker turn.

The BC Conservative Party is not a big-tent, catch-all centre-right coalition like the old Social Credit and BC Liberal parties that ruled the province for decades. Like formerly centre-right parties elsewhere, it is a radicalized right-of-centre grouping that disdains the compromises and consensus-seeking of the past. And like other right-wing parties that have fallen short of taking office, the Conservative caucus in the legislature has shown ideologically fissiparous tendencies. No fewer than six caucus members have either quit or been expelled, and some have formed an even-further-right party, OneBC.

The divisive ideological issues have not been traditional left-right economic policy differences but rather culture-war controversies and, significantly, anti-Indigenous fearmongering. OneBC Leader Dallas Brodie is a notorious residential school denier, a message she delivers in a particularly insulting and demeaning manner toward First Nations. Another OneBC MLA had to apologize for using the Nazi slogan “blood and soil.” Their influence is not limited to their small third party but extends directly into the process to replace the former Conservative leader, John Rustad, who was dumped after failing to control the divisions within the caucus.

The Conservative leadership contest featured a Republican primary–like race to the right: Which candidate could best outflank OneBC, especially on the Indigenous rights issue? In the end the Conservatives chose Kerry-Lynne Findlay, a former junior minister in the Stephen Harper federal government, arguably the candidate with the most right-wing credentials. Notably, she had declared earlier that a more moderate competitor was in “conflict of interest” speaking on DRIPA and land claims – because he was married to an Indigenous woman!

In any event, all the candidates, in effect, played the anti-Native card, stirring the anxieties and fears of alleged Indigenous threats to private property and free market prosperity (even extending to frantically distancing themselves from the innocuous land acknowledgements at public meetings). The prospect for the next election is of an ugly racist contest which could do great damage to the future of reconciliation, whatever the ultimate outcome.

Perhaps this will not come to pass; perhaps other issues will come to the fore; perhaps the better angels of British Columbians’ nature will prevail. But at this point it is unfortunately a story of how good intentions are not enough, and of how the law, which can be a force for good, can also darken the public policy horizon when it substitutes judicial principle for political prudence.

Note

¹ An important book documenting the BC record of bad-to-worse-to-better is George M. Abbott, Unceded: Understanding British Columbia’s Colonial Past and Why it Matters Now (Vancouver: Purich Books/UBC Press 2025). Abbott, a former BC Liberal MLA and minister in the Gordon Campbell and Christy Clark governments, is now BC Treaty Commissioner.