Indigenous reconciliation was considered Job One when the NDP unseated the B.C. Liberal government in 2017. They felt they were on the side of the angels then, convinced their cause of bringing First Nations fully into 21st century public decision-making was just.

Eight years in, it’s gone sideways well beyond the initial warnings that it would be intensely challenging and take years.

It’s been a series of arcane and complicated developments that played out in courtrooms and in private negotiations.

They are grinding away at the NDP government like a glacier.

The Current Crisis

This week, Eby said his stance on the latest crisis to arise — which is already intensely unpopular with First Nations leaders — was “non-negotiable.”

He wanted to rewrite parts of the law driving reconciliation (Declaration on the Rights of Indigenous Peoples Act) to weaken it.

Then, after a conference call with the ranking Indigenous leadership on Thursday, he pitched the idea of suspending portions for three years.

The Court Rulings

It’s to buy time for his government to try to win a crucial court appeal that could take years.

That stems from a Court of Appeal decision on a case from two First Nations that found B.C.’s mineral claims regime violates DRIPA. It said the stringent requirements for consultation apply even to staking claims, that routine first step in the mining industry. Needing permission to stake claims (thousands are filed each year) is unworkable and creates huge uncertainty, the industry says, at a time when the government is hoping for major new developments.

Running alongside that argument is the fallout from the Cowichan decision, where Aboriginal title in a Richmond area was found to supersede private titles in the hands of public bodies.

Thursday’s Showdown

Thursday’s showdown came as polls suggest people think the NDP is preoccupied with reconciliation, and support is waning. Eby told the media after the conference call that the need to pause was very unfortunate, but “we have to do something.” A pause is the “least invasive way we could think of doing it.”

He acknowledged the idea of rewriting DRIPA was totally unacceptable and “profoundly offensive” to the chiefs.

“Nobody is excited about this process, certainly I’m not, and First Nations leadership are not.”
— Premier David Eby

Legal and Political Tangle

The immediate concerns are the two separate decisions in the B.C. Supreme Court and the B.C. Court of Appeal that created all the anxiety. He railed against them earlier, to the point where legal bodies warned him to tone it down. His government is negotiating with the Cowichan, as ordered by the judge after she made the title ruling. But there are multiple appeals, and it could take years to reach a conclusion.

Eby has issued numerous reassurances and even put up $150 million in loan guarantees to calm real estate fears. But that didn’t stop Richmond Mayor Malcolm Brodie from asking the Cowichan Nation this week to “renounce” any claims on private land and do so in a legally binding way.

Background Controversies

Running in the background to the current reconciliation dilemmas are earlier controversies. There was the skimpy, low-profile consultation on the idea of co-management of public lands with First Nations that eventually collapsed.

There was a major title and land management agreement with the shíshálh Nation on the Sunshine Coast that was withheld until the 2024 election concluded.

And there was a court declaration cementing the Haida Nation’s title over Haida Gwaii. The earlier work was done in the open, but the application for a formal irrevocable declaration, which was considered historic, was supported by the government with no public notice or explanation.

When the Indigenous rights recognition bill was introduced in 2019, the stress was on delivering “economic and legal certainty and predictability. … A path forward, creating clarity and predictability.”

No one is using those descriptions today, and it’s not clear if anyone has ideas on how to get back on that path.