British Columbians, particularly those in Vancouver, have learned that another agreement was signed behind their backs by their government and First Nations authorities. On Feb. 20, Ottawa inked three “historic” agreements with the Musqueam Indian Band, whose traditional land covers the City of Vancouver and its inner suburbs like Burnaby and North Vancouver.
The official press release from the federal government mostly focused on expanding joint fisheries, stewardship, and marine emergency management. However, the most important aspect was buried in the body of the text.
Briefly noted was the announcement of a “Rights Recognition Agreement.” It “(r)ecognizes that Musqueam has Aboriginal rights including title within their traditional territory and establishes a framework for incremental implementation of rights and nation-to-nation relations with Canada.”
It is just one sentence, but it carries enormous implications, for the full Musqueam agreement itself is not public. Residents of Metro Vancouver, 3.1 million people, are once again blindfolded and being made to guess and figure it out for themselves.
We are left with what can only be called an intolerable veil of secrecy.
Even when Ottawa released the document on Monday, the consequences are still unclear. In effect, it is a 30-page Rights Recognition Agreement, plus separate marine management and fisheries agreements. The package provides general recognition of Musqueam rights and title “within” their territory and sets a framework for later talks on “how and where” those rights apply, while insisting it does not affect privately owned land. The rights agreement includes no map.
The Musqueam deal has landed like a bomb in the middle of B.C.’s most combustible debate in recent years. Aboriginal title claims, Crown land governance, and the strength of fee-simple private property rights are all up in the air in the minds of British Columbians.
Last August, Justice Barbara Young of the provincial court ruled that the Cowichan Tribes of Vancouver Island held title to over 750 acres of land in southeast Richmond in the Lower Mainland, and that Crown grants of private title were an unjustifiable infringement.
That fall, the provincial NDP government announced that it would appeal the ruling, while owners raised the alarm about financing and the marketability of their property. Businesses have already reported that lenders and potential tenants are holding back from further deals.
Premier David Eby has pledged financial “backstops” and other guarantees to try and mollify home and business owners, including access to financing. If the government is already volunteering emergency loans to stop a panic, they surely cannot feel confident about the potential fallout.
Now Ottawa has sprung an opaque deal that “acknowledges” Musqueam title within a territory that overlaps with other local First Nations, and the 3.1 million non-Indigenous residents, Indigenous and non-Indigenous alike, of Metro Vancouver. The secrecy is indefensible on every level.
“Within” traditional territory does not constitute a boundary. Governments at both the provincial and federal labels are treating vague terminology as definite.
“Rights including title within (a) traditional territory” can be interpreted as an admission of title somewhere inside a claimed area, without specifying where it ends. But, it will inevitably be presented by some lawyers and activists as some righteous recognition of title to the whole territory.
This is an utter malpractice of communications. Ottawa can formally recognize “title” for the Musqueam, but without revealing the planned implementation process, everybody has to guess how that will interact with other nations’ claims and their own lives.
The NDP government already has a serious credibility problem in this field.
Premier Eby has overseen attempts to reform land use in B.C. so that greater control can be granted to First Nations over Crown land, all while trying to keep the public in the dark. In early 2024, news that the NDP were altering the Land Act for such purposes caused such a storm of shock and outrage that Eby paused the proposed amendments.
Later that year following the provincial election, it came out that Eby’s government had already signed the shíshálh agreement, once again behind closed doors. The agreement transferred tremendous decision-making powers over the use of 1.2 million acres on B.C.’s Sunshine Coast to the shíshálh Nation. Any Land Act application now requires shared or even exclusive consent from the nation, taking power away from democratically accountable provincial authorities.
Now Ottawa appears to be adopting the NDP’s veiled approach towards land use and title as its own. Beyond questions of transparency, it undermines our democratic culture itself.
Musqueam governance is accountable to the band’s 1,300 registered members. Ditto for the Cowichan and their more than 5,500 members.
Greater Vancouver has a population of 3.1 million people, almost all of them non-Indigenous. They have no say on Musqueam or Cowichan leadership without drastic constitutional changes. If future Musqueam or Cowichan governments take a hard line on land use and their authority over their “traditional” territory, they are unaccountable to voters outside of their small enrolments.
That does not make First Nations into bad actors, but it does make this regime of secrecy intolerable. Musqueam Chief Wayne Sparrow has explicitly stated that, “Musqueam is not coming for anyone’s private property.” Cowichan leaders have also offered similar assurances.
These should be noted, but if these statements are legally binding in any way, it has not been revealed. For all the public knows, the security of their property may be a simple matter of goodwill from First Nations governments.
Every agreement needs to be published in-full, and from the get-go, so that legal scholars, business leaders, and the general public can know exactly what they will be dealing with. Even before negotiations begin, it should be revealed publicly with official announcements, not buried in mundane briefings, so nobody is taken by surprise. That is what is good for business, confidence, and reconciliation itself, if people are still interested in pursuing it when this land use debate concludes.
If elected governments in Victoria and Ottawa want to build a climate of trust around Aboriginal title, these structural economic changes cannot be negotiated behind a screen, for they will permanently change B.C. and Canada.
National Post