The B.C. law that can stop Carney's nation-building projects

In British Columbia, the NDP government led by Premier David Eby is paralyzed by its own policies. Unable to reverse its decision to embed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into provincial law, the province has effectively handed First Nations a veto over development on any claimed territory.

“You have a First Nations advocacy organization co-governing a province,” says retired Aboriginal law expert Geoffrey Moyse. “We saw it pretty clearly yesterday when the First Nations Leadership Council told Eby what was going to happen. They told him he couldn’t legislate, couldn’t change legislation, without their consent.”

Meanwhile, Gov. Gen. Mary Simon delivered the keynote address this week at the United Nations Permanent Forum on Indigenous Issues, celebrating the 20th anniversary of UNDRIP. At the same forum, Assembly of First Nations National Chief Cindy Woodhouse Nepinak sharply criticized the B.C. NDP government for trying to amend or suspend parts of the Declaration on the Rights of Indigenous Peoples Act (DRIPA), calling the moves “regressive” and “shameful” and urging the UN to condemn them. On the same day, Amnesty International accused Canada of backsliding on Indigenous rights, claiming new laws to fast-track nation-building projects threaten self-determination.

The cognitive dissonance is striking — two competing versions of reality.

In Alberta, talks on an energy MOU with Ottawa are stalled over who pays to decarbonize oil. Yet many expect First Nations’ demands will dwarf the carbon issue. If Prime Minister Mark Carney’s ambitious nation-building plans are to succeed, Canada must clarify the meaning of Section 35 of the Constitution — the clause imposing a duty to consult and accommodate Indigenous groups when their treaty or Aboriginal rights may be affected — and decisively back away from Justin Trudeau’s unconditional embrace of UNDRIP.

Canada is unique. As Geoffrey explains to me in a lengthy conversation, it is the only country that constitutionally affirmed Aboriginal and treaty rights in Section 35 — “and yet we think we should have UNDRIP on top of that.” To his knowledge, the only other nation that has effectively given First Nations a veto through UNDRIP is Bolivia. It’s a double whammy.

Geoffrey, who lives on Vancouver Island, spent 31 years in the B.C. Attorney General’s office advising six different administrations. Now retired, he focuses on educating the 98 per cent of British Columbians who are non-Indigenous, about their rights.

“I went to UVic before it was usurped by the wokesters,” he chuckles. Graduating in 1989, his legal education was steeped in Charter rights. “Nobody knew what they were playing with when they put Section 35 in the Constitution,” he says. “And to be fair to those who were in the room, they had no idea what the Supreme Court of Canada was going to do with that provision — in effect turning themselves into a government and deciding public policy on reconciliation from the Supreme Court building in Ottawa.”

Under Section 35, development can ultimately proceed, but only after meeting high standards of consultation and accommodation —standards that are routinely challenged in court. The Trans Mountain pipeline twinning became a multi-year legal marathon: to court, back to Federal Court, to the Federal Court of Appeal, and through endless appeals.

“Section 35 is a big enough problem, but we can probably soldier on under section 35,” Geoffrey submits. “What we can’t do is meet the requirements of UNDRIP.”

B.C.’s First Nations Leadership Council now insists Section 35 is outdated. “It’s UNDRIP,” they say. Unlike Section 35, UNDRIP demands First Nations’ consent — period, full stop. When they don’t get their way, First Nation activists threaten civil disobedience. “This is really astounding,” Geoffrey adds. “And we have a premier who says, ‘I can’t afford that kind of legal uncertainty, so I have to cave.’”

Carney will confront this power base head-on. “He has no idea what’s waiting for him in the province,” Geoffrey warns. Carney met with coastal First Nations groups; Geoffrey describes them not as representative of Aboriginal communities but as “an environmental NGO with funding from the U.S.  They don’t speak for First Nations; they speak for ENGOs… He might as well have been talking to Greenpeace.”

Ottawa is doubling down on UNDRIP. Three new treaties introduced in the B.C. legislature last week — for the K’ómoks, Kitsumkalum, and Kitselas Nations — constitutionally enshrine UNDRIP as the authoritative guide for their interpretation and implementation. “They just seem to be clueless,” Geoffrey says, failing to see that UNDRIP lies at the root of B.C.’s current problems.

Stephen Harper’s endorsement of UNDRIP came with conditions. Trudeau dropped them, declaring Canada “completely in favour of UNDRIP, no conditions.” No surprise the Governor General is delivering celebratory speeches at the UN — it aligns perfectly with Liberal policy on the international stage.

The consequences will reach far beyond B.C., Geoffrey warns. Wherever Aboriginal title claims exist outside the numbered treaties, the same consent expectations will surface.

In B.C., investors are already “quiet quitting” — simply walking away to jurisdictions with less uncertainty. Geoffrey offers a stark example: the Tahltan Nation in northwestern B.C. claims 96,000 square kilometres — 11 per cent of the provincial land base — for just 2,280 people. This is the province’s “Ring of Fire,” rich in mining potential.

Under UNDRIP rules, the B.C. government signed an agreement with the Tahltan requiring mining companies, like Skeena Gold, to obtain Tahltan’s consent. The Nation stands to gain nearly $2 billion over 25 years from the revived gold mine; BC taxpayers (representing 5.7 million people) will get $1.19 billion, Geoffrey reports.

“So we have a government that has basically not only authorized, but required, the extortion of companies on behalf of the First Nation,” Geoffrey says with obvious frustration. Under a pure section 35 Aboriginal title claim, the territory recognized would likely be closer to five per cent of the 96,000 square kilometres claimed under UNDRIP rules. “But they are behaving as though they own it all, and that’s what UNDRIP is providing them the ability to do.”

If Carney wants to get anything built, he must deliver a clear message: First Nations’ consent to development is not required. Ditch UNDRIP and reaffirm that Section 35 is the law.

Geoffrey doesn’t expect it will be amicable. “There is no vitriol that anybody can bring against anybody else in this country that is the equivalent of the vitriol that First Nations can bring to anybody who stands up to them.”

Born in Alberta, raised in the U.K., and a long-time B.C. resident, Geoffrey is the kind of plain-spoken patriot the province desperately needs right now. He recently renewed his British passport. “If this gets any worse,” he says, “I’m going home. Literally. I don’t care how bad it is in the U.K.”

National Post

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