Did Canada’s Adoption of UN Indigenous Pact Affect BC Court Ruling on First Nation Land Claim?

News Analysis

A recent landmark court ruling in B.C. upheld the indigenous right to reclaim ancestral lands by granting title and fishing rights to the Cowichan Nation in regions of the Lower Mainland based on their historic territory.

The court’s Aug. 7 decision references case law and a “senior interest” of aboriginal groups to regain the lands, even if they’re now held by government or private third parties. The province has said it will appeal the ruling.

While the 863-page decision from Justice Barbara Young only briefly mentions a sweeping United Nations indigenous pact, some legal scholars believe the court’s decision could have impacts on interpretation of the pact in Canada, although some argue that not much will change.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was an issue of contention ahead of the most recent provincial election in October 2024.

Critics resurfaced past comments by B.C. Conservative Leader John Rustad early last year that UNDRIP was “established for conditions in other countries—not Canada.”  Rustad made the comments while addressing the province’s proposed legislation to amend B.C.’s Land Act to align with UNDRIP guidance and raise the involvement of First Nations in decision-making when it comes to public land use. He noted at the time that it would be an “assault” on private property rights.

The NDP government criticized Rustad’s remarks regarding UNDRIP as a regression in the reconciliation process. The provincial government also refuted the claim by some critics that the suggested amendments to the Land Act provided First Nations with a veto, but it ultimately dropped the proposed changes to the Land Act under pressure from critics. Rustad’s Conservatives said at the time of the election that the party would honour the UNDRIP declaration.

UNDRIP is a non-binding 2007 U.N. resolution endorsed by a majority of member states that outlines rights to self-determination, land ownership, and consent laws for indigenous peoples. Specifically, it says “indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

The declaration was enacted into federal law by Ottawa in 2021, following its passage into B.C. provincial law in 2019. B.C. remains the only province to have done so. The law states in section 3 that “the government must take all measures necessary to ensure the laws of British Columbia are consistent with the declaration.”

Bolivia is the only country to have put UNDRIP into its constitution, a move that permitted indigenous land to become self-governing municipalities.

Prior to adopting the declaration into law, Canada endorsed UNDRIP in 2016, with then-Minister of Indigenous and Northern Affairs Carolyn Bennett saying: “It’s about righting historical wrongs. It’s about shedding our colonial past. It’s about writing the next chapter together as partners.”

How Much Did UNDRIP Figure in the Cowichan Case?

The ruling by Justice Young on Aug. 7 only briefly alludes to UNDRIP.

In one section, the ruling cites an argument against the Cowichan Nation’s title claim, which says that the First Nation itself acquired the land via “violence and conquest.” Young says that in this case contemporary laws shouldn’t be applied retroactively.

“It would not be in the spirit of reconciliation to hold an Indigenous Nation’s conduct centuries ago to retroactive standards of international or Canadian law. It would be a curious twist of logic to find on the basis of UNDRIP that an Indigenous Nation should be denied a declaration of title because of law that did not exist at that time,” Young wrote.

“UNDRIP is premised upon the self‑determination of Indigenous peoples and the continuing vitality of their legal orders.”

Dwight Newman, constitutional law professor at the University of Saskatchewan, notes in a blog post on Aug. 11 another part of the court proceedings, which says the province contested an argument by Cowichan Nation that B.C.’s commitment to the UNDRIP “affected fiduciary duties BC had in relation to past promises.”

Newman writes that the section of the judgment dealing with this issue shows “some complexities on the way honour of the Crown has replaced fiduciary duty without being noticed as such even by many lawyers and other legal experts.”

But he adds that Justice Young steered clear of saying “anything explicitly about this argument on UNDRIP,” and therefore the state’s adoption of the pact again didn’t have an impact here.

But the part of the UNDRIP that did have an impact on the judgment, he says, has to do with a section in which the judge is deciding whether the B.C. Land Titles Act would also protect private land against aboriginal title claims. Newman says in this section Young refers to a new provision introduced in the wake of the province’s adoption of the UNDRIP in legislation, which in simple words “requires courts to try to interpret BC legislation consistently with UNDRIP.”

Newman notes that although Young’s reference to this provision is very brief, “they’re used in support of (even if not as the main argument for) the idea that Aboriginal title could yet take priority over current private property rights.”

He adds that Young’s reference to this provision “highlights many possible future uses of UNDRIP for courts to reinterpret BC statutes.”

Tom Isaac, chair of the aboriginal law group at Cassels Brock & Blackwell LLP, says that while he agrees B.C. law is currently in a severely unsettled state, it is highly unlikely UNDRIP will overrule Canadian law in the future because existing rights for aboriginal people are already enshrined into law even more forcefully under Section 35 of Canada’s Constitution.

Section 35 recognizes and protects the existing aboriginal and treaty rights of Canada’s aboriginal peoples, including land claims agreements, and ensures that those rights receive legal recognition and can’t be removed without adequate negotiation and justification.

“You’d have to amend the Constitution to bring UNDRIP in, unless somehow a court read UNDRIP into Section 35, but I think at this point that’s far-fetched,” said Isaac in an Aug. 12 interview with The Epoch Times.

“If we go down that road, I think governments will be forced to intervene, because the effects in our economy, whether it’s the indigenous economy or the non-indigenous economy, will likely be profound, and we’re already having a tough enough time with investment in this country,” Isaac added, noting that he considers the recent Cowichan ruling as the most important ruling in Canadian indigenous history.

What Does Canada’s Adoption of UNDRIP Really Mean?

Ottawa’s adoption of UNDRIP in June 2021 indicates Canada is committed to aligning its national policies, laws, and actions with the declaration within the framework of current Canadian law. It means courts have guidance to interpret laws in a way that aligns with the rights of self-determination, land ownership, cultural preservation, and prior consultation as specified in UNDRIP. According to Ottawa, “This evolving roadmap promotes reconciliation by addressing systemic racism, socio-economic gaps, and discrimination.”

Canada maintains an annual “progress” checker on implementing the act and released a 2023–2028 action plan two years ago that details 181 measures to align Canadian law with UNDRIP. The measures aim to align federal laws and policies with indigenous land title and self-determination while also boosting indigenous-led education, culture and language revitalization, better health and social service, and strengthened nation-to-nation relationships between indigenous peoples and the Crown.

The action plan establishes a legal and policy framework that makes reclaiming or receiving compensation for claims to ancestral lands easier, including stating indigenous peoples’ rights to their traditional lands, territories, and resources and making land claims quicker to resolve. Actual land transfers or title recognitions must still occur through court rulings and negotiations separate from the UNDRIP legislation.