Over the past few months tensions have been building in the forests on Southern Vancouver Island and across British Columbia.
In responses in Question Period and media availabilities, Premier John Horgan has on more than one occasion asserted Indigenous sovereignty, rights and title.
In the past, sovereignty, rights and title were fought for and achieved through exhaustive, and expensive, litigation or negotiation that took Indigenous Nations decades to complete. Now, Premier Horgan appears willing to use these powerful words whenever and wherever suits him. Even as Premier Horgan is saying the words, the actions of his government and the agreements they are offering Indigenous leaders, show he has embraced the same colonial approach as his BC Liberal predecessor. Say one thing, and do another.
As I point out, it is easy for the Premier to make these bold statements with either no understanding of what they mean, or no intention to follow though. However, for Indigenous People it has a massive impact on their lives.
In Budget Estimates, I ask the Attorney General, Hon. David Eby, about the definition of those incredibly important terms, the troubling content of the Forest & Range Consultation and Revenue Sharing Agreements and the context these agreements are used in.
Yeah, thank you. I’m happy to be here to canvass with the Attorney General some important issues that we’re facing in our province right now.
Last week, I asked a question in question period with respect to forestry. In the response, the Premier stated: “At this time, more than ever, we need to acknowledge their rights and title” —speaking to Indigenous nations — “to that territory — and sovereignty, in my opinion, over those lands.” In a press release today, Premier Horgan acknowledges interests.
We’ve got these words that are being used and I’m wondering if, perhaps, the Attorney General, just for the purpose of the discussion here, could provide the government’s definition, as our top lawyer, around what the Premier might be talking about when he talks about sovereignty?
Hon. D. Eby: I just want to clarify the member’s question. I think what he’s asking is: does the Ministry of the Attorney General have a working definition of sovereignty in relation to land claims or litigation, as opposed to what the Premier meant. I just wanted to clarify that.
Hon. D. Eby:
Hopefully this helps the member, but perhaps he’ll give me more context for his questions.
The broad answer would be, with respect to sovereignty: the authority and jurisdiction of First Nations over lands prior to the assertion of European sovereignty over those lands, and that litigation or treaty or other negotiations or attempts to reconcile those two separate expressions of sovereignty and authority over those areas. I realize that’s quite high-level, but maybe we’ll be able to drill down a little bit.
As is my intention here, as we go forward.
In June 2014, the Supreme Court of Canada delivered their Tsilhqot’in decision addressing Aboriginal title and sovereignty, specifically Aboriginal title, in the decision. I think I’m going to paraphrase what Mandell Pinder wrote about this. Mandell Pinder was the law firm that represented my father to the Supreme Court. It stated that Aboriginal title covers: “The right to decide how the land will be used; the right to the economic benefits of the land; and the right to proactively use and manage the land.”
Does the Attorney General agree that this would be a good definition for Aboriginal title?
Hon. D. Eby:
My understanding of what the member has read is that it matches up very closely with the legal definition from the Supreme Court of Canada of Aboriginal title, articulated by Justice Lamer in Delgamuukw and cited again in the Tŝilhqot’in decision. So yes, that would be my understanding of Aboriginal title.
Okay. Excellent, thank you.
There’s no reference to sovereignty in the Declaration on the Rights of Indigenous Peoples Act that this Legislature passed unanimously in November 2019. However, articles 3 and 4 reference self-determination.
Just a question to the Attorney General. Would the articles referencing self-determination reflect sovereignty that has been…? Would that reflect what the government intends to be sovereignty? When the Premier’s talking about this and using this word, and the government’s using this word, would that be interchangeable in the Attorney General’s opinion?
Hon. D. Eby:
Again, I can’t…. Well, I could, but I won’t presume to speak for what the Premier intended.
The understanding within the ministry is that whether you talk about self-determination, self-government or sovereignty, it’s the recognition that prior to the expression of European sovereignty, Indigenous people had laws and governance structures and existence that need to be recognized and reconciled in our efforts, whether it’s through the treaty process or litigation or otherwise, and the expression of self-government, sovereignty or self-determination is the expression of those laws and governance structures that were imposed upon by the European expression of sovereignty.
I think part of the reason why I wanted to ask this series of these three questions is because….
I think the Attorney General hit on it a little bit, in that not understanding what might be behind a member of government, the highest-ranking member of this government, using those terms. See, because they mean things. They mean things to people who are paying attention. They’re words that, as the Attorney General highlighted, are defined.
So when the Premier of the province uses a word like sovereignty, or when the Premier uses the word “title”…. It took the Tŝilhqot’in 25 years to achieve title. Last week the Premier stands in the Legislature and uses the word title, saying that he believes that certain First Nations have achieved that without the considerable litigation that other First Nations had to endure in order to achieve it.
Now, I think that it’s important to just draw attention to the fact that when we use these words, it’s important that we understand the meaning behind them when they’re being used. We have the Supreme Court of Canada determining that the Tŝilhqot’in proved title over parts of their territory. Last week the Premier asserted his belief in Indigenous sovereignty in relation to a question that I asked about forestry.
Two years ago all members of this Legislature passed unanimously the Declaration on the Rights of Indigenous Peoples Act with articles around self-determination. It’s very clear — two articles, three and four — that Indigenous People have right to self-determination and that Indigenous People, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs. Those are things that we’ve all passed together. It’s a commitment that we’ve made.
Yet as late as February of this year — but even more recent — the Minister of Indigenous Relations and Reconciliation is signing agreements, the forest and range consultation and revenue sharing agreements, with Indigenous nations. So my question to the Attorney General: do these forest and range agreements, in his opinion, reflect an approach that is achieving self-determination, title, sovereignty — those words that have all been used? Or are they a reflection of the colonialism that the Premier warned of us last Tuesday, when he announced the forestry intentions paper — the threat that we would be returning to a more colonial past if certain things didn’t happen?
Hon. D. Eby:
Really, the goal of these agreements, as best I understand them, is that there’s a recognition of Indigenous rights and title on the land and that sometimes it’s necessary in the interim, as we wait either for directions from a court or completion of a treaty, to enter into agreements to recognize and protect those rights as we’re working out that reconciliation between those competing sovereignties that we talked about earlier. The understanding that I have of these agreements is not that they are a colonial threat but rather that they’re an effort at collaboration and cooperation with nations as we move towards either treaty or, if it has to be the case, some sort of a court declaration.
British Columbia has signed about 130 of these agreements for forestry in particular. There are lots and lots of other similar agreements that have been signed, and 40 of these agreements have been signed in 2021, 12 in 2020. In all, I would say there’s about 40 percent of these agreements that have been signed after we unanimously supported the DRIPA 18 or so months ago.
These agreements are templates — the same conditions, basically, for all First Nations that sign on. The Attorney’s former colleague, the former minister of Forests, Lands, Natural Resource Operations and Rural Development, called these take-it-or-leave-it agreements, meaning that’s the approach of government. You take this or you leave it. He’s in Hansard. The government’s members are in Hansard criticizing the former government for using this approach that, now, government have wholeheartedly adopted.
I think it’s important that British Columbians understand, just in the context of the Attorney’s response. Part C of these agreements reads: “The parties intend this agreement to assist in achieving stability and greater certainty for forest and range resource development on Crown lands within the traditional territories.”
Again, I think it’s important to recognize the words and the intention behind this. The assertion is that it’s…. When we talk about sovereignty and the claims of sovereignty, pre-existing sovereignty, and then Europeans show up and make…. It’s very clear in this agreement that these are Crown lands that exist within a traditional territory, a current statement within the relationship of a previous thing — the traditional territory. Crown sovereignty, present tense; Indigenous, past tense.
Article 2.1(c) states that the purpose and objectives is to “assist in achieving stability and greater certainty for forest and range…development on Crown lands within the traditional territory.” It’s important to acknowledge that the nuances that the Attorney General provided for this are not in these agreements. These agreements are clear. This is Crown land that exists within the traditional territory.
Article 8.1 of the agreement states that a First Nation must prepare a statement of community priorities that it intends to “fund to help achieve the socioeconomic objectives referred to in section 2.1(b).”
And 8.2 requires the First Nation to prepare an annual report “identifying all the expenditures made from the payment account”; 8.3 requires the First Nation to publish their community priorities to the public; 8.4 states that British Columbia “may, at its sole discretion and at the sole expense of the…First Nation, require an audit of the expenditures made from the payment account to determine that all such expenditures were made in furtherance of the purposes and objectives referred to in section 2.1.”
See, I grew up on a reserve in this country. I know the racist stereotypes that have been advanced about Indigenous people around the inability to manage land and resources and money. It’s something that we’ve always lived with.
So does the Attorney General consider these clauses as the Crown, the government that he represents, embracing Indigenous self-determination and sovereignty, expression of title over the land, all those things, or is this another example of a colonial entrenchment of the racist beliefs that people have of Indigenous people in this country?
Hon. D. Eby:
For the first, just as a caveat for this answer, these agreements are within the Ministry of Forests. We did not prepare for this line of questioning. We could, and I’m happy to engage with the member on this. I’ll do my best to answer; I just wanted to provide that sort of high-level overview.
On the Ministry of Attorney General’s understanding, what the member sees as a description of Indigenous rights in the past tense and Crown land in the present tense — and, therefore, implicitly incorporating a particular hierarchy of rights — the reason for this particular wording is the reflection of the framework for implementation of section 35 set out in Haida and Tsilhqot’in.
The court said that until there is a specific resolution of claims, whether through treaty or court decision, the lands remain Crown land and they’re managed by the Crown. Once they’re resolved, then they’re no longer Crown land; they’re held by the Indigenous collective, whatever it is in the given case. So the intent behind that is not to preserve that kind of structure forever, but rather to recognize that outline by the court that the structure of how lands pass to Indigenous nations is they are managed as Crown land until that claim is resolved. So in other words, intended to reflect the legal landscape.
Now for the second set the member read out, several points…. This is Crown sharing of revenues, and provincial Crown does have certain accountability responsibilities in terms of where we send money. We impose those accountability responsibilities on other agencies and other governments when we distribute grants and so on.
I do take the member’s point that First Nations are distinct and perhaps that this set of requirements around distribution of public money might not be appropriate. I can’t prejudge it. It’s not my ministry. What I can do is commit to the member to go back to the Minister of Forests and Lands to understand the intent behind the sections, why they’re there, and make sure that they make sense and to share that understanding with the member. I appreciate him drawing it to my attention.
In the few remaining moments that I have here, and I’m happy to respond to the Attorney General’s response to that first section, 2.1. The reality is that what it takes to resolve these have been largely a part of the big disgrace of us over the last number of decades.
The fact that treaty process drags on…. First Nations and my colleagues, the community have been at it 30 years or so to get to the end of this, and they’re still not there. The Tŝilhqot’in took 25 years of litigation through the courts to achieve title over a part of their territory. My father defended himself against this Crown government for more than a decade, for 12 years, on rights that were already established but we were just getting back at it to test them out again.
In order for us to be able to…. When we talk about the rights and the title and we assert that it’s the Crown’s, the Crown treasury…. That these are all resources that Indigenous nations don’t have access to, that they have to defend themselves and their rights and define it. So the tense actually matters, especially for people like me, where the tense is actually always present tense. I’m always presently intensely involved in all of this.
From a government’s perspective, we can be…. I think that it is important that the Attorney General does take a look at the agreements that this government is signing, because those definitions matter, those words matter and the agreements matter. Article 11 — and this strikes at the freedom that we have just as British Columbians — of this contract that’s in a different ministry, I respect, but I still think it’s important to get the perspective of our top lawyer on this.
Article 11 of the contract states that members of the First Nation, including the elected leaders “will not support or participate in any act that frustrates, delays, stops or otherwise physically impedes or interferes with provincially authorized forest activities.” Again, asserting the Crown’s interest here out in front.
Once you’ve taken it, rather than leave it — because those were the choices that have been largely pointed out by former NDP cabinet ministers — then you can’t talk about it publicly. I imagine that there’s probably a lot of challenge for you to kind of frame how you’re going to respond to it. So you see, there’s a lot of silence around this.
So 11.2 states that the First Nation “will promptly and fully cooperate with and provide its support to British Columbia in seeking to resolve any action that might be taken by a member of the First Nation that is inconsistent of the agreement.” So not only can the chief and council not raise concerns that they have with these agreements, but they must…. This is the divide and conquer aspect of this right? This is where it turns Indigenous people onto themselves. Now a chief and council has got to go to the membership and tell them to be quiet when they’re raising concerns about this relationship that’s been agreed to.
Let’s get back. I’ll frame my last question to the Attorney General in this way. Let’s get back to the “once they are resolved” part of the quote that he gave earlier. Because people have said to me, over the last number of weeks: “Look, you know what, Member? The Indigenous nations signed these agreements and many more. This is on them as well as it’s on the provincial government. This is on them for signing it.” There is a lot around that that is complex, that needs to be delayered. However, mostly for communities that immediately need resources to support their people, these agreements are a way to achieve that.
When the former Minister of Forests stands up and says that this is a take-it-or-leave-it agreement when he’s arguing with the former government about this, that’s what he’s talking about. In fact, he’s quoted in Hansard as saying exactly that. The socioeconomic conditions in Indigenous nations largely mean that you take it. 136 of these agreements on forestry alone.
The provincial government knows that the need is great, because their members have stood up and talked about that need. The Attorney General and his colleagues, when they write these agreements, are exploiting that need. They’re exploiting those conditions.
The other option is, as the Attorney General has answered a couple of times, to go to the courts or go to the treaty process. 25 years for Tŝilhqot’in. Good on them. They stuck it out, and they got a result. That’s not mentioned in these agreements. Tŝilhqot’in isn’t part of these forests and range agreements, but Tŝilhqot’in was about forests.
The treaty process? Languishing. Most of these nations are in the treaty process languishing, signing these benefits agreements, hoping to get to the day when they get a final agreement. Because that was the promise of the former NDP government of the 1990s, the B.C. Liberal government of the 2000s and now, here we are, today, in 2021. It’s easy for the Premier to stand up and talk about sovereignty, to say things like “rights and title” — those words. However, you know how long it takes to achieve that?
In November 2019, this Attorney General that we have here, today, received a letter outlining several complaints from the Tyee Ha’with Jordan Michael of the Nuchatlaht. He stated: “We expect the government to respond to the historic claim honorably, respectfully and in the spirit of Tŝilhqot’in and the UNDRIP. Unfortunately, that’s not happening. The Crown lawyers of B.C. continue to make our case far more expensive than it should be, using every possible tactic of procedural delay.”
If the Attorney General doesn’t want to stand up and talk about a court case that is potentially currently before the courts, and wants to use that, I can tell you that he only has to respond to the experience that my father has shared with me about how the this provincial and the former provincial government did exactly the same thing. You could say, made it more expensive than it should be and used every opportunity to delay the procedures, drag it out, take money from the seniors fund, take money from the education fund and take money from the kids and the seniors in order to defend ourselves in court once again.
As the Attorney General highlights today, one of the ways that we could achieve this is through litigation. We’ve got a government that’s frustrating that. One of the ways to achieve sovereignty and recognition of rights is through the treaty-making process. We’ve got examples of nations and the provincial and federal government languishing away for decades on end in those processes. So those are the two options that Indigenous nations have, other than this.
So in the spirit of the DRIPA, the thing that we passed all together, unanimously; the recent comments of our Premier regarding sovereignty, rights and title; and Supreme Court decisions like Tŝilhqot’in, does the Attorney General feel that the litigatory process of bankrupting Indigenous nations is an appropriate approach for this Crown government to maintain its control over the lands and resources?
Hon. D. Eby:
A number of responses to the member’s remarks, some of which is to agree and some to maybe depart ways a little bit. Litigation is very lengthy, complex and costly, and we’re not going to achieve reconciliation through the courts. I think that’s very clear. That is why our government is entering and negotiating a number of unique non-treaty agreements.
I would point the member to examples like Lake Babine, Carrier-Sekani. There are a number of incremental agreements of advance provision of lands and recognition of different rights in advance of treaty or litigation being determined, and we continue that work. It’s very important work.
I want to note, just with respect to the forestry agreements, that none of this precludes a nation or prevents them from expressing concerns throughout the consultation process in relation to land base where they have rights and title or judicial review of permitting decisions made by government, where they express concern, and it’s not respected by government. So there are avenues available there.
I will thank the member very much for his question, for his passion and advocacy on this very important issue. I know we share a lot of the same concerns, and there are lots of opportunities and progress. It’s not as grim as he said, but also there’s a whole lot more work to do. On that, I’m sure we agree.