This blog series co-published by Ng Ariss Fong, Lawyers and West Coast Environmental Law features interviews with leaders and experts discussing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and its relationship to the economy in BC and Canada.
Moving toward meaningful engagement with First Nations
Ng Ariss Fong spoke with Lawyer John Gailus about the Gitxaała v. British Columbia (Chief Gold Commissioner) decision, and what it means for the economy and major projects proposed in First Nation territories. They also addressed some of the fear-based misconceptions about how recent court decisions relate to private property.
Key takeaways:
- Economic fears about the impact of the court decision are largely unfounded, just like they were after the Haida decision in 2004, which affirmed Crown governments’ constitutional duty to consult and accommodate Indigenous peoples.
- As we saw after the Haida decision, forward-thinking businesses have an opportunity to advance partnerships and collaboration grounded in respect for Indigenous rights – even if government is slow to act.
- The Gitxaała decision was not about private property.
- Fearmongering is causing confusion about how recent court decisions, particularly Cowichan Tribes v. Canada (Attorney General), affect fee simple property owners, and distracting from our governments’ obligations to engage with First Nations about title claims.
Watch the video (transcript below):
Q: Will the economic sky fall because of the application of UNDRIP to BC laws?
A: I mean, I’ve heard this before. So I’ve been practicing for 25 years and I can remember when the Haida Nation case came out in 2004, that there were a lot of doomsayers who were saying that, you know, this duty of consultation is going to basically destroy the economy of British Columbia or the economy of Canada. And you know, we can see that that actually hasn’t happened over time.
What I see in terms of the Gitxaała decision is, it’s a further incremental step in terms of meaningful engagement with First Nations. And what I saw after Haida was, while government was slow to move to implement, there were many progressive companies and industries that seized upon that opportunity to go out and look at entering into agreements with First Nations, such that now it’s pretty standard in a lot of these larger projects that Nations have benefit agreements or even equity in certain projects.
So the decision I see is actually quite modest, in my view, in terms of you know, the government makes a commitment that UNDRIP is going to be part of our domestic law. Well, let’s just get on with implementation is my theory.
Q: Do you have a perspective on the Cowichan case and this worry that private property is going to be taken away from people?
A: I think it is highly unlikely that a court is going to rule, you know, someone who has bought their property in good faith, in law we call it a bona fide purchaser value, is going to then be dispossessed of that property. So there’s a lot of fear mongering going on that everybody’s fee simple title is at risk.
But that’s not to say that, you know, we can just move on from that. There is an outstanding obligation that the Crown, both federal and provincial, need to engage in with Cowichan and with other First Nations who have Aboriginal title claims, to reconcile those claims with the various fee simple titles, permits, leases that they granted, when in law, they had no lawful authority to do so.
UNDRIP and the Economy Series:
- How does respect for Indigenous rights relate to the economy? Feat. Tahltan Elder Allen Edzerza
- Will the economic sky fall? Feat. Gitxaała Chief Councillor Linda Innes
- What do recent court decisions mean for the economy? Feat. Lawyer John Gailus
- What does upholding Indigenous rights mean for the forestry sector? Feat. Professional Forester Garry Merkel