“The federal [Crown-Indigenous Relations] minister is on the record right now saying the [Musqueam] agreement protects private property. There’s not a word in the agreement that does that, not a word, not a comma.” —Tom Isaac
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It’s an important topic this week, focussed on the Musqueam rights and recognition agreement, which, among other things, acknowledges Aboriginal title somewhere in the Lower Mainland.
We asked Aboriginal law expert Tom Isaac back to the pod to translate what the agreement means, why it matters, and the burning questions at the centre of it all: Why are our governments doing this? And why now?
As always, thanks for caring about BC politics and supporting independent journalism.
—Fran
Musqueam rights and recognition agreement
“Musqueam laws and legal orders, grounded in our snəw̓eyəɬ now exist alongside and independently of Canada’s legal system.” —Musqueam rights recognition agreement
Landowners and investors in British Columbia were already on tenterhooks when the federal government signed an agreement with Musqueam Indian Band that, among other things, recognizes “unextinguished” Aboriginal title somewhere within the group’s massive asserted territory spanning much of the Lower Mainland.
News of the agreement followed an already tumultuous couple of years for private property owners. The 2024 Haida-BC government agreement recognized Aboriginal title over all private property on Haida Gwaii (subsequently constitutionally enshrined with a secret court declaration). Then last August, the BC Supreme Court Cowichan Tribes ruling found Aboriginal title is the “senior interest” over roughly 150 private properties in Richmond.
So when news of the Feb. 20 agreement between Ottawa and the Musqueam Indian Band finally leaked out to the public, it detonated like a political bomb.
Two additional agreements were also signed that day, related to stewardship and marine management over water and resources , as well as shared decision-making over fisheries within Musqueam claimed territory. But is was the rights recognition deal that rocked already shell-shocked landowners.
“Our legal tradition addressed key principles such as permissible access and presence in the territory and mechanisms to address uninvited or unwelcomed people… we have consistently protected and governed access to our territory and resources throughout our history.” —From the Musqueam rights recognition agreement
Under the terms of the rights recognition agreement, the federal government not only recognizes Aboriginal title somewhere within Musqueam’s claimed territory, it also commits to using UN Declaration on the Rights of Indigenous Peoples (UNDRIP) as the template going forward.
Tom Isaac explains why this is unprecedented and how the effects could reverberate across the province and country… and not in a good way.
Podcast preview: What worries investors
It’s more than a framework for negotiations
Some proponents of the deal have told everyone to calm down, that it’s just a framework to tee up future negotiations.
“That’s half the story, but it’s not the full story,” says Isaac.
Yes, it’s a framework, but it also recognizes Aboriginal title—which confers exclusive use of the land–without identifying where that land is located within BC’s largest, most populous city.
Crucially, the federal government commits to the articles of UNDRIP as the “minimum standards” that must be met when dealing with all Indigenous people.
Accordinging to Isaac, UNDRIP is an impossible standard that no justice system anywhere could actually meet. UNDRIP accepts asserted territory as ownership of land, bypassing the rigorous legal test of occupation set out in Canadian constitutional law.
“It’s not a test for Aboriginal title. There’s no evidentiary burden there. It’s basically all of Canada.”
Where Canadian law requires onerous proof of aboriginal title and has legally defined title, accounting for overlapping claims, and justifiable infringement, explains Isaac. “[UNDRIP] is like, ‘No, it’s yours.’”
Given the constitutional provision of the “honour of the Crown,” courts will now be well within their right to hold Canada accountable to meet the standards of UNDRIP, says Isaac. “Otherwise they’re just empty words. So which one is it, minister, do you mean what you say, or are they empty words?”
We’ve seen this play out already when last December, the BC Court of Appeal called the BC government on its ‘words’ in the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which commits to incorporating the principles of UNDRIP into all BC laws. Elected officials had framed DRIPA as alternately inspirations, or a guiding framework, but the court ruled the legislation “actionable” in court, meaning government is legally bound to uphold it to the letter of the law.
The premier reacted with outrage, lashing out at the court, vowing to amend the legislation this session. Ironically, hypocritically, Eby himself introduced the law he was now angrily pledging to amend.
Everybody knows that UNDRIP can’t be fully implemented, says Isaac. “So then you go, ‘Well, why are we saying sort of silly statements that on their face cannot be implemented?”
Why our governments keep doing this is a perplexity we examine in this podcast.
Podcast Preview: ‘This is not going to end well’
Private property is not protected in Musqueam agreement
Both the Musqueam chief and the federal Crown-Indigenous Relations minister tried to assuag public panic, insisting the deal only involves federal lands and leaves private property “unaffected.”
But Isaac challenges the notion.
“There’s not a comma in the agreement that restricts this agreement, or Canada’s agreements in it, to federal lands.”
Tom Isaac is a leading Aboriginal law expert in Canada. He’s represented multiple levels of governments, industries and businesses across the country and court systems, on major projects, on regulatory and constitutional matters. He led negotiations on the largest class-action suit settlement for residential school students in Canadian history ($2.8 billion). He’s currently 300 pages deep into writing his 17th law book (spoiler: it’s on the duty of the Crown).
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Podcast producers: Rob Shaw & Zach Proulx
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