Tim Thielmann: The NDP’s long history of sacrificing B.C. on the altar of Indigenous rights

B.C. NDP candidate Niki Sharma’s 2018 tweet lamenting the “unbearable whiteness” of British Columbia’s elected leaders has circulated widely as the province heads into a snap election on Oct. 24. The comment was not an isolated slip. It reflect a longstanding NDP approach to the legal status of the province itself.

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NDP politicians have long used Aboriginal land claims to make British Columbians pay for yesterday’s colonial grievances. The story begins with the first land claim to test British Columbia’s legal foundations.

It was launched by Frank Calder, who was not only a former chief of the Nisga’a but also an MLA who served with the NDP and its predecessor, the Co-operative Commonwealth Federation. Calder’s claim failed. Three of seven justices found that while Aboriginal title existed, it had been extinguished in this case. A fourth judge dismissed the appeal on a procedural technicality.

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In 1991, Allan McEachern, then-chief justice of the Supreme Court of British Columbia, denied the next major land claim, brought by the Gitxsan and Wet’suwet’en nations in Delgamuukw v British Columbia. He again found that Aboriginal interests in land had clearly and plainly been extinguished when British Columbia entered Confederation.

But by the time the appeal was heard, Premier Mike Harcourt’s NDP had taken power from Social Credit. Under Attorney General Colin Gabelmann, lawyers were instructed to reverse the province’s position and argue that Aboriginal rights had not actually been extinguished. In 1997, the Supreme Court of Canada ordered a new trial, while setting the standard for determining Indigenous rights to claimed territories. Aboriginal title, a new set of undefined Indigenous property and governance rights, was born.

The addition of Aboriginal rights within Section 35 of the Constitution Act, 1982, lifted these newfound rights beyond the reach of the notwithstanding clause and allowed the courts to repeatedly expand the scope of Aboriginal title, with or without the assistance of elected governments.

They have done so repeatedly. In 2004, the Supreme Court ruled in Haida Nation v British Columbia that governments must consult and accommodate Indigenous groups with credible but unproven title claims. Mikisew Cree First Nation v. Canada followed in 2005, extending those obligations to bands that had surrendered their claims through historic treaties.

The practical consequences have been substantial. The Trans Mountain pipeline expansion, originally budgeted at $5.4 billion, ultimately cost $34 billion and took 12 years to complete. The federal government was forced to nationalize the project to bring it into service. Comparable delays and cost overruns have affected resource projects of every scale throughout the province, driven in large part by the consultation and accommodation obligations created by post-Delgamuukw jurisprudence.

Then came Cowichan Tribes v. Canada. In the summer of 2025, the B.C. Supreme Court declared Aboriginal title over land within the city of Richmond, including the titles of roughly 45 privately held properties. The NDP had again tied the hands of the province’s lawyers. Litigation directives established while David Eby was attorney general had instructed them not to “advance arguments based upon the unilateral extinguishment of Aboriginal rights.”

The outcome in Cowichan shouldn’t have displeased the NDP. In 2019, the government passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA), a law making the United Nations Declaration on the Rights of Indigenous Peoples legally binding within British Columbia. DRIPA and related changes to B.C.’s Interpretation Act effectively mandated governments and courts to align all laws with a declaration that was never intended to be law, and established a de facto Indigenous veto over many infrastructure projects.

In her judgment, Judge Barbara Young drew from DRIPA and other steps taken by the NDP to recognize Indigenous claims over private lands, writing: “The question is not whether Aboriginal title can exist over fee simple lands, but whether fee simple interests can exist on Aboriginal title lands.” Homeowners, lenders and investors are still reeling from the realization that the guarantee of indefeasible title has been cracked wide open.

The B.C. Conservatives promise to repeal DRIPA, but it’s not yet clear what they would put in its place, and they continue to treat Aboriginal title itself as if it’s beyond their reach. It isn’t. For British Columbia, constitutional change is no longer an option — it’s a necessity. Former prime minister Pierre Trudeau did it in 1982. It can be done again.

Law Prof. Dwight Newman has proposed using the bilateral amendment procedure in Section 43 of the Constitution Act, 1982, to shield private property in B.C. against Aboriginal title claims, as amendments that only affect one or more provinces only require approval by the affected provincial legislatures and the federal Parliament. That’s a good start. It may even be possible to use this same procedure to restore sovereignty over the remaining 95 per cent of B.C. lands that are held by the Crown on behalf of the public, but this requires further examination.

In any event, the task lying ahead of B.C.’s next government will be to persuade the federal government that the economic survival of British Columbia is a matter of mutual concern. That is not a mission that the NDP will likely accept. They have a longstanding tradition of undermining the legal foundations of the province to settle colonial scores or punish British Columbians for what Niki Sharma might describe as the “unbearable whiteness” of its founders.

National Post

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