Opinion: NDP, opposition parties have duelling legal opinions on how private land owners affected
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VICTORIA — B.C. Conservative Leader John Rustad is challenging Premier David Eby’s insistence that the recognition of Haida Aboriginal title over Haida Gwaii poses no risks to private property holders.
“The Eby NDP is undermining your property rights,” Rustad declared on X, this week. “The Haida deal means First Nations title could be applied to all private property in B.C.”
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The posting contrasted with Rustad’s favourable comments when the NDP government introduced the enabling legislation for recognition of Aboriginal title.
“It might come as surprising to some people to know that I support title,” said the Conservative leader. “This is a path that we need to do to be able to bring predictability, certainty for Indigenous and non-Indigenous alike.”
He described how as minister of Aboriginal relations in the last B.C. Liberal government, he’d challenged government lawyers on their plan to fight the Haida in court on Aboriginal title.
“I said: ‘Are you guys crazy? The Haida people have defended the Haida Gwaii islands for thousands of years. How on earth do you expect that we would actually win this in court?’
“I support the idea of this bill,” said Rustad. “To the Haida people, congratulations.”
The contrast between those generous remarks on Monday and the social media posting the next day had New Democrats accusing Rustad of hypocrisy. He made nice with the Haida in the legislature, then cut the ground out from under them after they left town.
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Rustad had a ready explanation for the shift. When he spoke Monday, the government had just provided a copy of the bill and there was no time to read it.
Tuesday, he was briefed by the senior public servants behind the legislation. Their answers gave him second thoughts, which he expanded on Thursday in a news release that accused the premier of misleading the public.
“In a private briefing with ministerial staff, it was revealed to me that Eby’s NDP would be granting Haida title over 100 per cent of all private land on Haida Gwaii,” wrote Rustad.
“I fully support resolving Haida’s title claim but including private land is reckless and exposes the people of B.C. to an incredible liability risk.
“This means land owners on Haida Gwaii are at the mercy of future Haida Indigenous law. I was told by government that financial compensation will be required by 2026 or B.C. will be going to court with Haida.”
He predicted that the government’s approach will have implications for the other 200 or so Indigenous nations in B.C., each of which asserts title over its share of what is now Crown land.
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“Premier Eby and his consultants are misleading everyday, hardworking British Columbians about the chaos and the crisis they are creating.”
B.C. United has also expressed reservations about the legislation, albeit not in the sweeping terms of the Conservatives.
Party Leader Kevin Falcon called on the government “to hold off on its rushed enactment and ensure broader consultation,” in a news release Wednesday.
B.C. United cited concerns about the impact on private land rights and tenures on Crown land.
The New Democrats bristle at suggestions that the Haida deal poses any risk to the rights of the non-Indigenous holders of private, fee simple property.
“What the Conservative leader claims about the Haida agreement is a 100 per cent, proven lie,” said cabinet minister Nathan Cullen on his X account. “Private landowners are protected. In writing. In the agreement. Period.”
The text of the agreement does say that “the Haida Nation consents to and will honour fee simple interests” and “consents to fee simple interests continuing under B.C. jurisdiction.”
But the agreement is not a treaty. It is a commitment to a two-year transition process where the parties will try to reconcile “Haida Nation and B.C. jurisdictions consistent with Aboriginal title.”
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Nor is the legislation implementing the agreement a treaty. Rather, it consists of “interim measures” in relation to the matters that are supposed to be sorted out in the two years of talks.
However the legislation does recognize that Haida Aboriginal title applies to all land on Haida Gwaii, within the meaning of the Canadian Constitution.
Aboriginal title has the meaning given to it under common law, which to say the right of exclusive use and occupancy.
That sets up a contradiction, say the two opposition parties, citing analysis from two major law firms.
By recognizing title in absolute, constitutional terms, the government has simply postponed the reckoning for holders of private land. When the two years are up, either the private lands will be under Haida jurisdiction or the case will be back in court.
Good luck making that argument with the New Democrats. They’ve lined up their own platoon of lawyers to stand behind their approach.
Plus the premier has already signalled what the deal means to him. “This is the honour of my career,” Eby told the legislature. “I am going to remember this for the rest of my life.”
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Those are not the words of a leader with any doubts about the radical course he is imposing on the province.
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