(The first in a series of articles about Indigenous consent, property rights and the future of DRIPA)

British Columbia is currently navigating a widening divide. On one side, the courts are handing down historic decisions affirming Indigenous rights. On the other, a growing wave of anxiety over private property and economic certainty. Today, we look at the fallout from the Gitxaala and Cowichan Tribes decisions—and the political battleground forming around the Declaration on the Rights of Indigenous Peoples Act (DRIPA). 

These are actually three separate topics: two court cases regarding the duty to consult before registering mining claims (Gitxaala versus British Columbia and the 2025 appeal); a court case regarding the Aboriginal title to an ancient village site that was sold out from beneath the Cowichan Tribes (Cowichan Tribes v. Canada); and DRIPA, the provincial legislative framework that formally adopts and implements the the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

(Image: Screenshot from Google Earth)

(Click here to access Reasons for Judgement)

The tension spiked following Cowichan Tribes v. Canada. For hundreds of years, the Cowichan tribes wintered in the Southern Gulf Islands and then regrouped at Tl’uqtinus village, in Richmond, during the warmer months. David Rosenberg, Senior Counsel  for the Cowichan Tribes, explained, ‘These lands were settlement lands and settlement lands were supposed to be put aside for as reserves for First Nations.’ Instead, Tl’uqtinus was sold to settlers.

In her Reasons for Judgement, Justice Young wrote, “Between 1871–1914, Crown grants of fee simple interest were issued over the whole of the Claim Area, including the Cowichan Title Lands. The first purchase of Cowichan Title Lands was made by Richard Moody who was the first Chief Commissioner of Lands and Works for the Colony of British Columbia and was tasked with ensuring that Indian reserves were created at sites of Indian settlements. Because occupied Indian settlements were appropriated, and could not be sold, most of the Crown grants in the Cowichan Title Lands were made without statutory authority.”

The court restored the 800 acres of the historic village site ‘over which they have proven sufficient and exclusive occupation,’ to the Cowichan Tribes.  

(See Nuchatlaht v. British Columbia 2023 and 2024, at the bottom of this page, for examples of how important evidence of exclusive occupation currently is to the courts).

(Maps above taken from Justice Young’s Reasons for Judgement)

Anna Kindy, the Conservative MLA for North Island Powell River, argues this has created a dangerous precedent regarding private land.

“They basically got title to 800 acres, including private properties. Right now what they’re saying is Aboriginal title supersedes private property title.”

Kindy points specifically to Section (Article) 26 of DRIPA (screenshot above), which recognizes Indigenous rights to traditionally owned lands, as the root of the problem. 

She warns of the economic ripple effects.

“These homes are having problems remortgaging and selling. There’s this uncertainty – like if you have private property, are you under law of the First Nations? Does that supersede British Columbia law?”

This uncertainty may be reaching financial circles. In a recent Union of BC Municipalities panel discussion, former chief treaty negotiator Robert Junger noted that bond analysts and lenders are already asking questions about what this means for borrowing against private property.

Cortes Currents: So is private property actually at risk?

Justice Young wrote, “The Cowichan have not made a claim for return of land from non-parties, and the property rights of the private landowners are not undermined.”

 Regional Director Mark Vonesch from Cortes Island explained, “I think it’s really important for people to understand, the Cowichan case has nothing to do with DRIPA. Indigenous land title has been established in Canada as a constitutional right since 1997 with the Delgamuukw court case and in 2014 with the Tŝilhqot’in court case. Indigenous land title has nothing to do with DRIPA and repealing DRIPA would not solve anything. It would not change the Constitution. Repealing DRIPA would do nothing to create less uncertainty in the province. In fact, I think it would create more uncertainty.”

“The Cowichan decision is based on constitutional law and even if DRIPA was repealed, Section 35 of the Constitution (screenshot above) still exists. That’s a really important thing for folks to understand. These claims by the Conservatives, including our own MLA, that this affects personal land title are false. The dispute over land is not between First Nations and individual property owners. It’s between First Nations and the Crown; First Nations and the provincial government.”

Jennifer Lash, the recent Liberal candidate for North Island-Powell River, believes the current backlash is a political tactic rather than a reflection of legal reality.

“I think in the last 10 years, more has been done to advance reconciliation than ever before in the history of the country. It is critical for the health of the country that we address these issues. I think we’re getting to a point in some of the decisions where people who could support it as a concept, are feeling it could potentially affect them negatively in their actual day-to-day life – like the Cowichan case and this question around fee simple land.”

“For many people, their home and the land that they own is their biggest asset and so it’s not only economically important, but it’s family important. It’s culturally important. To feel like something could be at risk draws a lot of questions, and I think right now the atmosphere out there is if you ask a question about it, you are considered to be against First Nations. So people then have this frustration within them.”

“I would like to see greater leadership coming from all leaders of all parties that allow a constructive conversation to happen so people can feel comfortable and not using this as a political weapon to gain support by creating fear in people.”

“Conservatives are capitalizing on that fear, which is a very common approach. That’s how they govern, that’s how they build support, is they capitalize on fear and they make it sound like everything you own is at risk.”

(Click here to access Reasons for Judgement from 2025 appeal)

Gitxaala versus British Columbia (2023) was about the crown’s duty to consult with First Nations before registering mineral claims in their traditional territory. The plaintiffs won, but appealed, and in Gitxaala versus British Columbia (2025) the BC Court of Appeals ruled that the province’s mineral claim is inconsistent with Article 32.2 of DRIPA (screenshot below).

Anna Kindy: “The court is going to interpret everything that happens in the province, every law that has been passed, through the eyes of DRIPA and that’s causing a huge issue.”

British Columbia’s duty to consult with First Nations was confirmed in both the Sparrow case (1990) and Haida Nation v. British Columbia (2004).

Subsequent consultations were often a mere formality. For example, the West Moberly First Nation’s lands are recognized in Treaty #8. In a previous interview, Chief Rowland Willson described their 2007 meeting with Premier Gordon Campbell.

“They invited us the afternoon that he showed up. They had planned it for a month. They waited to the last minute to call us and said they’re moving forward on Site C. We believe that consultation is a dialogue where they listen and we listen and they take into consideration and make accommodations for our rights. What happened in the process? They let us blow off steam, and they went and made their decision. Actually, they had already made their decision. Then they came and told us what their decision was. We asked them to amend it. They said ‘no,’ and then they went on to move forward on their decision.”

The government’s failure to consult in a meaningful way came to a head in Yahey v British Columbia (2021). Treaty #8 recognized the Blueberry River First Nation’s right to hunt, fish and trap in their ancestral territory. Justice Burke ruled that this was no longer possible because, despite the Nation’s expressed concerns ‘for at least a decade,’ the province gave away too much of their land for industrial development (forestry, oil and gas). 

“ … The Province failed to respond in a manner that upholds the honour of the Crown and implements the promises contained in Treaty 8. The Province has also breached its fiduciary duty to Blueberry by causing and permitting the cumulative impacts of industrial development without protecting Blueberry’s treaty rights.”

Article 32.2 of DRIPA moves the goalpost from consultations that often appear to have consisted of ‘ticking the box,’ to ‘obtaining free and informed consent prior to the approval’ of projects affecting their lands.

Anna Kindy: “We need to dive into this to make sure that we’re doing what’s right for the First Nations, but also what’s right for all British Columbians.”

She sent a link to a YouTube video in which Thomas Isaac of Cassels Brock & Blackwell declares that every piece of legislation must conform to the 70 paragraphs of DRIPA, plus the distinct cultures and traditions of all 200-plus Indigenous nations in this province. He insisted, “It’s silly, it can’t be done.”

Anna Kindy: “ It’s not good for reconciliation. It’s not good for First Nations either. They didn’t ask for this to happen, but here we are. Now we need to seriously look at DRIPA. We are the only jurisdiction worldwide that has adopted UNDRIP.”

Kindy stated Canada is the only country to adopt UNDRIP as law, but this is not correct. Bolivia adopted UNDRIP in 2007. Ecuador has not “adopted UNDRIP as a single Act,” but it has constitutionally incorporated virtually all the rights found within UNDRIP. Mexico and Colombia have been applying UNDRIP in their constitutional processes and a 2023 UN study lists 793 Latin American court cases based on UNDRIP.

Several Nordic Nations have considered adopting UNDRIP. Sweden’s principal hindrance appears to be that their ‘regulations fail to fully recognize reindeer herding not just as a livelihood but as an intrinsic right, integral to Sámi culture.’

New Zealand’s proposed adoption of UNDRIP came to an abrupt halt when the Labour government was not reelected in 2023.

The BC Conservatives are calling for DRIPA to be repealed.

Robyn Mawhinney, Regional Director for Area C within the SRD, responded, “Frankly, I’m embarrassed that the MLA who represents my community is calling to repeal DRIPA. Here in the SRD alone, which is only part of her riding, there are 11 First Nations. I’m curious if she’s met with them and discussed her desire to repeal the Declaration of the Rights of Indigenous Peoples Act, and I’m curious what the chiefs of the First Nations in the North Island riding think about this call.”

Mark Vonesch: “She didn’t campaign on this. This is something new that’s come out of the Conservatives and it’s a step backwards for the province. The future of BC is projects and prosperity that are done in partnership with First Nations. Truth and Reconciliation isn’t just good for First Nations people, it’s good for all of us.”

Robyn Mawhinney: “Personally, I believe, and I believe for our province as well, that DRIPA offers a clear pathway for First Nations, industry and government to work together. The Declaration Act (in which DRIPA was adopted as law) was intended to make this process smoother and easier by creating a framework for consultation. Repealing it will likely lead to many more court challenges and more uncertainty and move BC in the wrong direction, further from building reconciliation.”

“Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs, has stated that repealing DRIPA would set us back decades and will continue to pit First Nations against other British Columbians.”

“Repealing DRIPA is not reconciliation. Repealing DRIPA would, however, be a real blow to relationship building with First Nations in BC. I’m really struggling that there are BC leaders calling to repeal this important step towards reconciliation. When the Declaration on the Rights of Indigenous Peoples Act was voted on in the legislature, it passed unanimously.”

The Union of BC Indian Chiefs (UBCIC) recently issued a press release stating that acknowledging historical facts shouldn’t be cause for alarm.

“A negative narrative has begun to take hold. This narrative wrongly blames First Nations for uncertainty while ignoring the historical reality that British Columbia was largely settled without treaties. It replaces facts and experience with fear, and cooperation with division.”

Marilyn Slett, Elected Chief Counselor of the Heiltsuk Tribal Council told the CBC, “The Declaration Act is not the problem. It was codeveloped with First Nations and passed unanimously in 2019 with the support of business and labour.”

 Premier David Eby has promised to amend DRIPA stating, “reconciliation is the business of government to government relationships between the provincial government, between the provincial government, the federal government, and First Nations government. It’s not for the courts to take over.” 

Former BC Liberal Attorney General Geoff Plant argues that whether politicians repeal DRIPA or not, the issue is constitutional.

“A repeal of DRIPA will not change the fact that all provincial government decision-making will continue to be potentially judicially reviewable… nor the fact that virtually all of British Columbia is subject to claims of aboriginal title. One way or another, the courts will still have the last word.”

Grand Chief Stewart Phillip repeated this idea in a telephone conversation with Cortes Currents, adding that DRIPA is the provincial implementation of UNDRIP – a framework that emerged from decades of international negotiations and drafting directly involving Indigenous peoples from around the world. He also endorsed former BC Liberal Attorney General Geoff Plant’s post, “Judges have last word on aboriginal law, not politicians, says former BC official.”

David Rosenberg concluded, “First and foremost I think an open and respectful dialogue has to happen. If we don’t have that, we’re in trouble even in the best scenario.”

Some other legislation and cases of note:

• Nuchatlaht v British Columbia (2023), in which the court ruled that the Nuchatlaht did not establish sufficient occupation of the entire claim area to meet the test for Aboriginal title over 201 square kilometres on Nootka Island.
• In Nuchatlaht v British Columbia (2024), the Court found that the Nuchatlaht had proven their claim to roughly 11 square kilometers of territory on Nootka Island.
• The Nang K̲’uula / Nang K̲’úulaas Recognition Agreement (2025), in which Canada and British Columbia recognized the Haida Nation as the holder of inherent rights of governance and self-determination, and the Council of the Haida Nation as the governing body of the Haida Nation.

Links of Interest:

• Links to text of DRIPA and various cited court documents are in the text above
• Judges have last word on aboriginal law, not politicians, says former BC official – Northern Beat
• Implications from the Cowichan Tribes decision – Union of BC Municipalities YouTube
• Complications for reconciliation in British Columbia (w/ Thomas Isaac, Cassels Brock & Blackwell) – Carole Taylor’s Journal (YouTube)
• Articles about, or mentioning, DRIPA
• Articles about, or mentioning, the Cowichan Decision
• Articles about the Gitxaala decision and 2025 appeal
• Articles about, or mentioning, the Haida Nation’s Aboriginal title agreement (2025)
• Articles about, or mentioning, the Nuchatlaht Decisions

Sources: Cortes Currents conducted a number of interviews (with people listed in bold print) and gleaned additional material from news releases, reasons for judgements, and YouTube presentations on the web. Cortes Currents added additional text and pictures in the hours after publication.

Revisions: Subsequent to publication Cortes Currents added a number of pictures, the section mentioning the Haida Agreement and Nuchatlaht decisions and tightened some of the language in the text.

Top image credit: Cowichan woman putting tule ( a reed typically used to build temporary watercraft) on boat (about 1910) – Photo from The North American Indian / Edward S. Curtis – courtesy US Library of Congress (Public Doman)

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