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Opinion: Don't trust Ottawa on Musqueam agreement

British Columbians are not wrong to worry about the costs involved or the value of their private property

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Last weekend it became known that the Federal Government had signed an aboriginal rights agreement with the Musqueam First Nation, which acknowledged rights and title “within” a large area encompassing most of Metro Vancouver. This bilateral agreement between the Carney government and the Musqueam sets out their shared intention to “negotiate” Aboriginal title for the Musqueam within their vast claimed territory using the principles of UNDRIP as their lodestar.

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The last time we saw the federal government do this was on Haida Gwaii where, with the full support and participation of the David Eby government in B.C., they declared and went to court to solidify Aboriginal title for the Haida over their entire asserted terrestrial territory: that’s no less than a million hectares of land encompassing the whole of Haida Gwaii, an archipelago off the west coast.

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That declaration of Aboriginal title to 100 per cent of a claimed traditional territory is something that never would have occurred had the Haida proceeded with their Aboriginal title court case. In the landmark Tsilhqotʼin Nation v British Columbia case, for example, the Supreme Court granted Aboriginal title to less than five per cent of the band’s traditional territory in central B.C.

British Columbians can therefore be forgiven for getting very upset by this vaguely worded commitment by Canada to “negotiate” Aboriginal title for the Musqueam — and not even in a proper treaty context. At numerous points, the agreement makes reference to the UN Declaration on the Rights of Indigenous People (UNDRIP) as a basis for implementation, going so far as to say on page 11 that “It is the intention of the Parties that this Agreement contribute the implementation of the UN Declaration” and, on page 14, that “For greater clarity, the Parties recognize and agree that the rights and principles affirmed in the UN Declaration are described as constituting the minimum standards for the survival, dignity and well-being of Indigenous peoples, including Musqueam.”

This last point carries more significance than perhaps it seems. Among the 46 articles of UNDRIP, certain ones are more impactful and worrisome than others. Article 26, for example, states that, “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use.” That is to say, if an Indigenous group claims a territory, they own it and all its resources. Put the recently revealed Musqueam agreement together with Article 26 and you can quickly find yourself in a situation where the Musqueam could be at minimum compensated for the value of all properties in the Lower Mainland: approximately $1.9 trillion dollars.

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The reaction in B.C. given the sensitivity of land rights and potential impact to property owners has been swift and passionate. British Columbians are quite clearly not prepared to simply trust that their most important asset — their house — will “probably” be fine if they leave this up to the wisdom and negotiating skills of the Carney government. Wade Grant, MP for Vancouver Quadra and member of the Musqueam Nation put out a release which was at pains to make clear the agreement does “not infringe on private property rights and will not alter ownership of privately held land.” That is almost certainly technically true. However, it conveniently ignores the fact that while homeowners will not be tossed out of their homes, the door is being opened — under the principles of UNDRIP — to financial compensation that is simply unfeasible. No government has $1.9 trillion dollars to spend because an aspirational UN human rights document thinks it ought to.

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David Eby, while trying to avoid further blow back on this issue, first claimed he had not been briefed on the situation. However, within three hours of his initial denial, it came to light that Eby was, in fact, present at the signing ceremony between the Musqueam and Ottawa, which took place in his riding, though he was apparently still in the dark as to the agreement’s contents. We are therefore to believe that the premier had no inkling about an agreement that potentially throws land title in all of the Lower Mainland into question and creates massive business and investment uncertainty.

There remains much to be seen about the exact implementation of the Musqueam-Ottawa agreement. What is now clearer than ever is the secretive way both the provincial and federal governments are now going about the process of so-called “reconciliation” in British Columbia.

The real tragedy is that by continually misleading the public and allowing the spectre of the destruction of the value of private property to hang in the air, David Eby and his government, as well as the Carney government, are forging a path towards distrust and acrimony between Indigenous and non-Indigenous Canadians.

Adam Pankratz is a lecturer at the University of British Columbia’s Sauder School of Business and sits on the board of B.C.’s Public Land Use Society. 

Geoffrey S. Moyse, KC, is a retired senior lawyer who served as legal counsel on Indigenous law to the Province of BC, advising six successive governments on Aboriginal law over more than 30 years. He is principal at Moyse Law and an advisor to the Public Land Use Society.

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