Geoff Russ: Repealing DRIPA is only the first step to fixing Eby’s reconciliation overreach

Does the question of reconciliation loom large over British Columbia’s ongoing provincial election?

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In public polling, it does not rank as highly as economic issues such as the cost of living or public safety. But the effects of legislation such as the Declaration on the Rights of Indigenous Peoples Act (DRIPA), along with questions surrounding private property, have not disappeared.

The B.C. Conservatives have pledged to repeal DRIPA if they form government, but that would be the easy, low-hanging fruit.

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Accompanying DRIPA has been a concerted effort to fund narratives that favour the legislation and related policies. In effect, the NDP, aided by the federal Liberals, has been paying to create the social licence for altering the status of private property, land use and the economy itself in B.C.

For example, Canadian Heritage has given $230,000 in funding to a travelling Nanaimo Museum exhibit about historic railway land grants, specifically framed around their “colonial” effects. The so-called “Great Land Grab” project was intended to portray today’s forestry and private land ownership on Vancouver Island as part of the legacy of those grants.

No one is questioning historical inquiry, but using public money to draw a line from “colonial land policies” to today’s private landowners and business operators amounts to a political campaign that will have consequences.

The ongoing effort to completely reshape the provincially run Royal B.C. Museum in Victoria is another example, with new displays that frame B.C.’s historic resource industries and colonial development as ecological, moral and economic disasters for Indigenous Peoples and the environment.

That is one interpretation, a highly charged one that relegates First Nations to the role of passive victims rather than recognizing the active participants they often were in colonial history. It recasts them as something resembling an absurdly Avatar-style resistance movement.

In any case, the NDP’s solution to remedy these alleged wrongs is to assert more power over the economy, which is still built on private land and resource extraction.

Decisions by the courts have only compounded these developments.

The judiciary, which is not accountable to the public in the same way elected governments are, has handed down consequential decisions such as the B.C. Supreme Court ruling in Cowichan Tribes v. Canada. It recognized Aboriginal title over a swathe of land in Richmond, including privately owned land. For the record, private land ownership is also excoriated by the Royal B.C. Museum through its colonial land office display, which depicts the system that parcelled out land in the province.

That same judiciary has already rejected one property owner’s attempt to reopen the case, finding that the owner had prior knowledge of the claim and warning that reopening it could invite a flood of similar applications. These decisions are very favourable to B.C.’s NDP government, whose DRIPA legislation provides mechanisms for expanding Indigenous participation in decisions affecting private property and private-sector industry.

Take it from the law firm McMillan LLP: “In Cowichan Tribes, Justice Young relied on DRIPA in supporting her conclusion that the provisions of the Land Title Act that provide ‘indefeasible’ title to private landowners do not apply to protect against Aboriginal title claims over private land.”

Furthermore, the B.C. Court of Appeal has used DRIPA and related interpretive provisions in concluding that British Columbia’s online system for registering mineral claims under the Mineral Tenure Act was inconsistent with UNDRIP, the United Nations declaration that DRIPA implements in provincial law.

DRIPA is a provincial statute, not part of the Constitution of Canada. It can be amended or repealed through ordinary provincial legislation, subject to the Constitution.

Yet DRIPA is now being treated as a basis for reshaping the province through government and the courts, and the NDP has happily funnelled money into what is effectively a PR campaign to embed its underlying principles in everyday life. DRIPA is legislation that the NDP passed, and they can amend it as they see fit to suit their ends, or not all.

Voters must make the connection sooner or later. It is not as though they are ignorant of the broader issues surrounding property and land use.

Commissioned by the Public Land Use Society (PLUS), a July Abacus poll found that 86 per cent of respondents said it was important that major changes to governing authority over public lands and natural resources receive public approval before coming into effect.

An even larger share, 90 per cent, indicated that decision-making powers should be clearly disclosed and understood by the public. Seventy-three per cent of respondents preferred that elected governments publish their own negotiating positions before entering into discussions over land and resources.

The NDP government has clearly fallen short on transparency and public disclosure, as it withheld various agreements with Indigenous governing bodies from public view prior to the last provincial election. Only after the election did it resume work on them, including one potential “Foundation Agreement” with the Tahltan that would see the nation gain greater power over 11 per cent of the province’s land mass.

That proposed agreement would possibly grant the Tahltan Nation land-use authority and shared decision-making without accountability to the broader public, with DRIPA serving as part of the legal framework. In effect, a parcel of land larger than Portugal would be largely and permanently removed from the full authority of the elected legislature.

Again, DRIPA is not the top issue in the provincial election. A recent poll by Ipsos found that a combination of land use, property rights and DRIPA was the top issue for just six per cent of voters. However, the consequences of DRIPA and changes to land use will affect the economy, which itself is a major issue.

As with taxes and public spending, land-use policy inevitably has economic consequences. The NDP has tried to write off the controversies over DRIPA as a “culture war,” despite the fact that much of its time in government has been spent waging one with determination and purpose.

The NDP’s objective is to use DRIPA and public institutions to refashion the B.C. economy so that the government and its allies exercise greater control over the private sector, with that control entrenched through legislation and long-term agreements.

Should the B.C. Conservatives win, they must not be shy about rolling it all back, lest they bake in the NDP’s undemocratic, self-serving reforms.

National Post

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