BC property owners face an uncertain future due to the Eby government’s Aboriginal land policies
By Geoffrey Moyxe
The term “Aboriginal title,” as defined in Canadian law, provides ownership rights to Aboriginal titleholders similar to any other landowner.
These rights include the right to occupy the land, to decide how the land is used, to enjoy all the economic benefits of the land and its resources, and to manage and use the land as they see fit.
Most importantly, it includes the right to exclude others from that land.
This is the nature of the Haida “land rights” the province has now “recognized” over the entirety of Haida Gwaii, including over the lands of private fee simple landowners.
A highly questionable legal theory has been used to prevent Aboriginal title ownership rights, now recognized over the private lands on Haida Gwaii, from directly conflicting with those private land rights.
This dubious decision was made because, for some reason, the province deemed it essential, in the interests of true “social justice,” to recognize Haida Aboriginal title over private fee simple lands, even where there was no need to do so. It’s a historic move, a true act of anti-colonialism. However, it also seems like ultimate “virtue-signalling” at the expense of private landowners.
Is this a lesson for the “settlers”?
The NDP government’s actions should send a very strong signal about what is in store for your own private land in this province when the so-called “Haida template” is applied elsewhere in BC. Say farewell to the value of your property and likely your biggest investment. Good luck trying to sell it to someone else.
It is obvious that the province has manipulated the constitution in its unilateral legislation of Haida Aboriginal title, a matter that falls squarely under federal jurisdiction in Canada.
However, one can only assume that the province, aware that its legislation is constitutionally invalid without corresponding federal legislation, has likely been engaging in non-transparent discussions with the Trudeau government in Ottawa. The aim is to ensure the federal government supports the Haida “deal” and enacts legislation recognizing Aboriginal title to 100 percent of Haida Gwaii.
If the Trudeau government agrees to this demand, the current constitutional problem with BC’s legislation will be fixed. Aboriginal title (ownership) will cover Haida Gwaii permanently and cannot be altered or extinguished by anyone, unless there is a change to the Canadian constitution.
For those who view this as a “just” outcome for the Haida, this must be very welcome news. For others, who understand the legal requirements for proving Aboriginal title under Canadian law, this is nothing short of a grotesque breach of the public interest.
But what about the “agenda” for the rest of British Columbia’s public land base? When “woke” governments collude, virtually anything becomes possible. They could collectively transform all of British Columbia’s public Crown lands into Aboriginal title lands under total Aboriginal ownership and control, cementing this change permanently in the constitution.
One of the rights granted by Aboriginal title is the right to exclude others from the land. With a few more pieces of federal and provincial legislation, vast areas of BC public land are no longer public or publicly accessible – forever.
Under the Eby government “Haida template,” a 100 percent Aboriginal title solution could be applied elsewhere in BC or even across the entire province, likely without any public input.
A far-left provincial NDP government, working in tandem with a far-left Liberal government in Ottawa, not only has the combined legislative power to transform all of British Columbia’s public land into Indigenous ownership but also the ability to fulfill a shared “social justice” agenda that could radically redefine the entire history of British Columbia.
Food for thought next time you are in the voting booth.
Geoffrey S. Moyse KC is a retired senior lawyer who served as legal counsel to the Province of BC, advising six successive governments on Aboriginal law over 30 years.
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