By Justine Hunter and Frances Bula for The Globe and Mail
British Columbia Premier David Eby lashed out at the judiciary on Wednesday, saying two recent decisions on Indigenous rights and title jeopardize the provincial economy and threaten progress on reconciliation that has paved the way for $100-billion worth of resource projects.
Speaking at a business luncheon with the B.C. Chamber of Commerce, Mr. Eby took aim at a provincial Supreme Court decision that awarded Aboriginal title in a developed part of Metro Vancouver that includes private lands, as well as last Friday’s B.C. Court of Appeal decision that set a binding obligation on government to abide by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in existing legislation.
“To face such dramatic, overreaching and unhelpful court decisions as we have seen over the last couple of months, is deeply troubling,” the premier said.
He listed off major investments in resource industries that are moving ahead on the strength of First Nations partnerships - negotiated agreements that have helped provide certainty in a province where few treaties exist. Those projects include new and expanded mines, port expansions, and proposed liquefied natural gas facilities. If the second phase of LNG Canada is approved, he noted, it will eclipse the recently-completed phase one as “the largest private sector investment in Canadian history.”
Mr. Eby has repeatedly raised the alarm about the Cowichan decision, saying it threatens private property rights. The Cowichan Tribes dispute his characterization, calling his statements “at best, misleading, and at worst, deliberately inflammatory.”
On Wednesday, he said his government will find a way to undo the Cowichan ruling. “We will fix this because the uncertainty this case creates is toxic to the work we have to do with First Nations and businesses and the economy that we have to grow.”
On Dec. 5, the B.C. Court of Appeal delivered the Gitxaała decision following a challenge by two First Nations to the province’s mineral claims system. The court found the staking system was inconsistent with UNDRIP and that the government was bound to uphold its commitments to the UN declaration “with immediate legal effect.”
“It’s hard to understate the damage that could be done or has already been done to public support for the delicate, critical and necessary work we have to do with First Nations,” Mr. Eby said.
“British Columbians, not judges, have to decide our path forward. There are no judicial shortcuts to this work.”
In May, Ontario Premier Doug Ford earned a rebuke for his attacks on “terrible, terrible bleeding-heart judges.” Ontario’s three chief justices responded, saying judges must be “free to decide each case on its own merits, without interference or influence of any kind from any source, including politicians.”
In the Cowichan decision last August, the B.C. Supreme Court concluded the Cowichan Tribes have Aboriginal title – a type of ownership claim rooted in ancestral use of land – to roughly 800 acres in Richmond, including private properties. That title is a “prior and senior right” to land, the court ruled.
The province has already said it would appeal the Cowichan decision and intends to seek a stay of the ruling.
Mr. Eby announced Wednesday that his government is also working on a plan to offer a guarantee to affected homeowners and business owners in the claim area so they can continue to access necessary financing.
The area affected by the Cowichan ruling, next to the south arm of the Fraser River on Lulu Island, is already experiencing a high level of uncertainty that is percolating among private landowners, business operators and even the federal government’s port operations.
One major land holder, Montrose Industries Ltd., filed notice last week that it wants to be added as a participant in the appeal of that decision because of the impact it is having on the company’s operations and because private property owners were never informed or allowed to participate in the case.
In a lawsuit and affidavit filed with the Victoria court registry, the company says it recently lost its financing and a tenant for one of its recently completed units in the Richmond Industrial Centre that it is building on a former municipal landfill.
Montrose has been told by both the lender and prospective tenant that the negotiations have been ended because of the uncertainty created by the judgment.
The Montrose application said the company has spent $330-million already in its operations on that property, including managing environmental issues, and has $200-million in mortgages. “Montrose’s substantial capital investment is reliant upon the rules of the land title system and the Province of British Columbia’s explicit system of indefeasible land title,” the filing says.