David Eby takes a swipe at two Aboriginal rights court rulings, promises help for affected Richmond properties

VICTORIA — Premier David Eby says the province will provide financial protection to home and business owners caught up in the recent B.C. Supreme Court recognition of Aboriginal title over private land in Richmond.

There are concerns that the 150 or so landowners in the area could face difficulties selling their property or renegotiating mortgages after the court’s recognition that Aboriginal title is “superior” to private fee-simple title.

The province has been doing its own research in the affected area, as part of an application to stay the court decision until any appeals play out.

“We are preparing work to be able to offer a guarantee to affected homeowners and business owners in the specific area identified by the court, so they can access financing,” the premier announced in a speech Wednesday to the B.C. Chamber of Commerce.

“People’s homes and businesses are not bargaining chips,” continued Eby., according to the text released by the premier’s office. “Whether a family home or an industrial park owned by a business, we will go to the wall to defend private property — full stop.”

Eby provided no details on what financial protection would cost.

Rough estimates indicate the hundreds of hectares of affected private land could have a market value as high as $2 billion.

The premier used the speech to take another swipe at the B.C. Supreme Court decision that granted Aboriginal title to the Cowichan Tribes over the tract of public and as well as private land in Richmond.

“The uncertainty this case creates is toxic to the work we have to do, and the economy we have to grow,” he told the chamber crowd. “The court promised the parties that the decision would respect private property and not impact private property owners, and then issued a judgment that did exactly that.”

The Aug. 7 decision on the Cowichan/Richmond case was delivered by B.C. Supreme Court Justice Barbara Young, though Eby did not name her.

Nor did he name names in levelling a second blast at the B.C. Court of Appeal for last week’s ruling that provincial mineral claims legislation was incompatible with the UN Declaration on the Rights of Indigenous Peoples.

The province recognized UNDRIP in a Declaration Act six years ago. But Eby maintains that the Act established a framework for the province and Indigenous nations to reconcile legislation with the declaration’s principles over time.

Instead two of the three members on a Court of Appeal panel ruled that the UN Declaration is already “the interpretive lens through which B. C. laws must be viewed and the minimum standards against which they should be measured.”

Or as Eby put it: “Two out of three justices felt that the Court was better placed than government to establish priorities for legislative work with First Nations partners.”

The unnamed-by-the-premier author of the mineral claims decision was Appeal Court Justice Gail Dickson, writing for her and Justice Nitya Iyer.

Their “decision invites further and endless litigation,” charged Eby. “It looked at the clear statements of intent in the legislature and the law, and yet reached dramatically different conclusions about what legislators did when we voted unanimously across party lines for the Declaration Act.”

Eby vowed the province will amend the Declaration Act, and the related Interpretation Act, to “ensure they reflect their original intent.”

The premier makes much of his statement of “intent” as attorney general back in 2021, when he introduced a change to the Interpretation Act that tied it to the UN Declaration. At the time, he told the house that change should not be used to overturn existing legislation.

The Court of Appeal instead focused on the actual wording introduced by Eby — that henceforth “every Act and regulation must be construed as being consistent with the (UN) Declaration.”

That particular wording was the product of “a deeply collaborative development process with Indigenous representative organizations,” according to Eby.

Perhaps the choice of the word “must” was deliberate. Perhaps the court drew the same conclusion when reading it.

The amendment did not get a lot of scrutiny from the Opposition when it breezed through the house in 2021.

But veteran MLA Mike de Jong, himself a former attorney general, did ask about the impact on statutory decision makers — senior public officials — who interpret the public interest in making decisions on land and resources.

The UN Declaration obliges governments to talk to Indigenous Peoples in advance “to obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources.”

“Wouldn’t the statutory decision maker have to take that language” — and hence UNDRIP itself — “into account?” De Jong asked Eby.

Good question. Eby never answered.

Instead, the New Democrats invoked time allocation, using their majority to cut off debate and pass the legislation without further discussion, leaving de Jong’s question hanging in the air.

But last week, the Appeal Court provided an answer of sorts. The amendment to the Interpretation Act made provincial laws and regulations subject to the UN Declaration, whether or not that was David Eby’s intention all along.

vpalmer@postmedia.com 

Related