DRIPA, reconciliation promises to be a top election issue

[u/CaliperLee62]

https://resourceworks.com/dripa-reconciliation-promises-to-be-a-top-election-issue/

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[u/ApprenticeWrangler]

As a BC voter, I agree with the NDP about way more things than the conservatives, but if the conservatives are willing to get rid of DRIPA and stop the insanity when it comes to the indigenous title claims that are causing chaos in the province, I can see why people will vote for them.

Eby said he was going to scrap DRIPA which I was completely in favour of, but then he caved to the activists in his party. I don’t expect him to pivot if he gets reelected which means we will continue to hand over more land to the indigenous groups, continue to have major industrial projects cancelled, and continue to hand out our tax dollars to the band chiefs who rarely actually distribute the gains to their band members.

[u/AcerbicCapsule → u/ApprenticeWrangler]

Translation for those who can’t see in the back:

“I agree with the NDP about way more things than the conservatives, but the conservatives’ fearmongering has effectively convinced me to vote for them. I am relatively easy to manipulate, as are most voters.”

[u/TheWaySheHoes → u/AcerbicCapsule]

Has this line of advocacy ever worked in history? Like seriously now.

Whether you like it or not this is an issue. You can engage with it constructively, acknowledge the shortcomings, and try to find a good way to move forward in a balanced way that assuages the concerns of all parties.

Or I suppose you can handwave away the issue and call the people idiots to boot, and then act shocked when people move to the opposition.

[u/ApprenticeWrangler → u/AcerbicCapsule]

I didn’t say I’m voting conservative, but I’m saying I can understand why people would be drawn to them if they’re willing to stop the ridiculous land handouts and allowing First Nations to squash massive projects that are incredibly valuable to the province.

[u/yaxyakalagalis → u/ApprenticeWrangler]

There are no land handouts, there are unextinguished Aboriginal Title issues that are being resolved through negotiation or litigation.

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[u/TraditionalGap1 → u/ApprenticeWrangler]

The unstated proposition here is that scrapping DRIPA is going to... stop the handing over of more land to indigenous groups, stop them from blocking major industrial projects and stop handing out tax dollars to band chiefs?

Boy will you be disappointed

[u/tutamtumikia → u/TraditionalGap1]

Politics isnt about what is true, its about what you can convince your voters is true.

[u/hardk7 → u/ApprenticeWrangler]

DRIPA and the land rights concerns that followed the Cowichan decision are separate things and they keep getting conflated. The DRIPA challenge is the courts ruled that all legislation, including all existing legislation, is subject to being found inconsistent with the principles of UNDRIP, and if so then the govt must amend the legislation to make it consistent. This revealed that according to the courts DRIPA (passed unanimously by all MLAs in BC) is not merely an aspirational set of principles but is actually binding. This in practical terms could potentially create huge legal challenges with the ability of government to legislate and for the province to function if suddenly all existing legislation begins to be subject to legal challenges. So Eby’s initial response was, for merely practical reasons, DRIPA needed to be repealed and reworked. But yes he did not reach consensus within his caucus and party to do so.

The land rights issue comes from the Cowichan decision which is a constitutional issue and not something unique to just BC. The ruling is also under appeal and is not settled. I don’t expect the Supreme Court to allow the ambiguity around aboriginal title and private fee-simple to coexist. The point here being though that this is Constitutional issue and the BC government itself cannot amend the Constitution or overrule aboriginal title. Both sides in the dispute are appealing the decision for different reasons and both side have stated they don’t wish to alter existing private fee-simple land title. BC and the Cowichan are in the process of negotiating while the appeals happen, with the likely outcome being an agreement that retains existing private fee-simple titles.

The problem on both DRIPA and the Cowichan decision however is that the govt has very poorly clarified and communicated on the issue and it’s allowed a ton of misinformation to poison the discourse and deceive voters into thinking the NDP is just giving away not just Crown but individual title-holders’ land, which is not true.

[u/ApprenticeWrangler → u/hardk7]

UNDRIP only has any legal basis on provincial matters because of DRIPA. If we scrapped DRIPA completely then UNDRIP would only affect federal matters in BC and provincial law would not need to comply with UNDRIP.

[u/hardk7 → u/ApprenticeWrangler]

Yes that’s true. But passing DRIPA was a big deal at the time, with unanimous support from all MLAs from all parties at the time. It has political consequences for the NDP in this province to repeal it. So while Eby himself was in favour of intially repealing it and then later moving to an amend-it position, he was unable to garner enough caucus support and to move forward would likely have put his leadership in jeopardy. So we’ll see what he says on this issue now when pressed during this campaign, which I’m sure he will be at least in the debate when he can’t sidestep the question

[u/TheWaySheHoes → u/ApprenticeWrangler]

Eby really could have leaned into DRIPA big here, and said “we had good intentions but legislation is written by humans and humans are flawed. We hear your concerns. Give us a mandate to fix this law instead of get rid of it wholesale”.

The NDP can’t run from this issue forever. It will come up in the debates and they better have a good answer because this is murdering them in Richmond and Surrey doesn’t look good either, and breakthroughs in those cities were instrumental in the last NDP majorities.

[u/Hobojoe- → u/TheWaySheHoes]

He just needs to cite Jody Wilson-Raybould. She said implementing DRIPA properly will take decades

[u/ywgflyer → u/TheWaySheHoes]

The large number of immigrants living in those suburbs are probably not very inclined to care much about reconciliation, particularly when many of them sold everything they owned back home to buy their home in Canada and now are worried that they might have title issues.

[u/TheWaySheHoes → u/ywgflyer]

I agree with this, and it’s a major liability for the NDP. This is why I would love to see a BC poll with racial crosstabs, because immigrant/immigrant descended Canadians are a big chunk of the NDP’s road to victory.

It’s hard to say for sure how this issue resonates with white/indigenous Canadians versus racialized ones without some good data, but the theory that this is less of a major concern for new Canadians is not one that’s too hard ot believe.

[u/GraveDiggingCynic → u/ApprenticeWrangler]

I think you'd better go look up Delgamuukw v. British Columbia. You're going to find out that everything you believe is wrong, and if First Nations don't get reconciliation through government, they will win in the courts. Gordon Campbell already played this card twenty years ago with his Treaty referendum, and then the courts and doubtless the governments own legal council made it clear that if the Government didn't negotiate in good faith, Nations were just going to take it to court, where those Nations without treaties would win, because that is the law of the land.

[u/ApprenticeWrangler → u/GraveDiggingCynic]

The courts only say that the government must negotiate, not capitulate.

It’s also unsettled on private land and it seems that indigenous title over private land is not valid based on the determination of other courts.

Also, that case you cited awarded no land, and ordered a new trial that never ended up happening.

[u/GraveDiggingCynic → u/ApprenticeWrangler]

You are aware that fee simple title is not some sort of infinite title, and the Crown's radical title overrides it anyways.

[u/StickmansamV → u/GraveDiggingCynic]

Of course but there is a reason that the courts have so far tended to stay away from sorting out fee simple vs aboriginal title. It's a powder keg as we have seen, and far better to find it as it always has an impairment on Crown title. To the extent the Crown title was impaired by aboriginal title when fee simple was granted, that should have only resulted in a claim against the Crown. The issue with real property is that it is never like for like but drawing on the and title registry schemes the recourse is to provide compensation and not actually exchange title or impair. 

[u/GraveDiggingCynic → u/StickmansamV]

That is the easiest recourse, but if the Crown starts picking fights because the guys telling the Crown what to do are intransigence bullies and bigots, then the courts may not be so accommodating. As it stands, fee simple title is subordinate to the Crown's radical title, and the Crown has absolute right to to dissolve or modify that fee simple title, with the common law requiring the Crown to compensate the holder of fee simple title.

There's no way you can try to sneak some sort of allodial title into fee simple title. The Crown could, even if it caused much uproar, expropriate any fee simple land to create land under Aboriginal title. That is within the law, within the core constitutional power of the Crown. Now, whether the Crown would do that, or if the Crown is run by a bunch of bigots and idiots, the courts will compel the Crown, is something we ought not test.

But make no mistake, fee simple title was never what people seem to be making it out to be.

So my suggestion to all those shaking your fists, put your damned fists down, quit acting like fools, and urge the Crown to establish these treaties, not merely because it creates certainty, but because it's the right thing to do.

And stop lying about what fee simple title means.

[u/StickmansamV → u/GraveDiggingCynic]

I do not disagree with what has been said. But that could have been all left unsaid or in obiter in Cowichan and sidestepped the issue rather than giving the opposition to reconciliation such a useful talking point. The implication of impairing Crown title already made clear all the other issues that could arise and leaving Aboriginal title as sui generis and not directly pitting it against fee simple would have been far better.

[u/GraveDiggingCynic → u/StickmansamV]

The Supreme Court explained what the solution is, and that is do what was done elsewhere in Canada, which is to sign treaties which normalize and regularize all of this, so there is no question. Until that is resolved, there is a huge incongruity in large parts of BC, because the people that the constitution itself in the form of the Royal proclamation of 1763, whose recognition of those nations was entrenched, have not been dealt with in the mandated manner.

The Crown already tried the whole "hey, too bad, all these land transfers happened a long time ago, so aboriginal title is extinguished", and it failed.

And as to jumping in down in histrionic fits of xenophobia, well, Gordon Campbell pulled that populist stunt, and soon it became clear that the constitutional order of Canada can't simply be hand waved away by a mail in ballot. The Crown is obliged to deal with this, and if the BC Conservatives win, repeal DRIPA and declare war on Indigenous rights, they will end up losing in a court room, and the courts might justifiably say at this point that the Crown in Right of British Columbia has had three decades to figure this out, and now the court will start imposing solutions.

And where land was flagrantly stolen by land swindles, as happened to the Cowichan peoples, you're damned right, fee simple title derived from faulty Crown title very much could be dissolved, and the Crown will be left to pay the holders of fee simple title.

So I return to my core point, which is, stop the bigotry, idiocy and unwitting desire for self harm that the racists and populists want to visit on us, and get the damned deals done. Enough is bloody enough, and enough with bullying and threatening the victims of all of this, the nations, as recognized in Canadian law since 1763, predating pretty much every land swindle and fee simple claim in BC by a century.

[u/ApprenticeWrangler → u/GraveDiggingCynic]

You claim fee simple is not some infinite title but you think indigenous title is?

[u/crappy_diem → u/ApprenticeWrangler]

You should take a look at the hierarchy of land rights in Canada.

[u/TheFallingStar → u/ApprenticeWrangler]

Fee simple title is not guaranteed by our Constitution. The Crown can technically extinguish or expropriate any fee simple title.

Aboriginal title is protected by s35

[u/GraveDiggingCynic → u/ApprenticeWrangler]

Even indigenous title is subordinate to the Crown's radical title. All title in Canada, and in the other Commonwealth realms, is subordinate to the Crown's radical title.

The problem in large parts of BC is the land was taken without treaties being negotiated, which was a breach of the law, which required that the ceding of Indigenous lands be done via treaty (Royal Proclamation of 1763). The Crown did it in many other parts of British North America. The Numbered Treaties are the very foundation of the provinces of Alberta and Saskatchewan.

[u/ApprenticeWrangler → u/GraveDiggingCynic]

I agree, crown title supersedes all. This is exactly why when the crown sells land which becomes fee simple, the crown title that was sold overrides aboriginal title.

Cowichan and similar cases are trying to argue that the crown had no right to sell it because it should fall under aboriginal title, but as we’ve established, the crown title supersedes all others, therefore they sold land that was ultimately theirs to sell.

This means all fee simple land was lawfully sold and therefore would not fall under any title claims.

[u/GraveDiggingCynic → u/ApprenticeWrangler]

No, it doesn't. Delgamuukw v. British Columbia makes it clear the original Aboriginal title was not extinguished. Your claim is thirty years out of date. Fee simple title, being subordinate, means it is subordinate to all of the Crown's obligations and responsibilities. It is not immutable, and even if the purchases gained the land legally, it was sold without following the rules.

[u/yaxyakalagalis → u/ApprenticeWrangler]

Cowichan is very different than the NBSC case. In Cowichan the land was to be set aside as reserve and was improperly sold by a govt agent. The Cowichan have been fighting for it since before Confedration, and sent a delegation to England to ask the king to fix the issue.

So the decision in NB will be taken into account, but he issue is much more complicated legally here in BC.

[u/StickmansamV]

There is not much the government can do with respect to the Cowichan case other than the appeal, and perhaps adopting a modified position in the rare cases it comes up. 

DRIPA is the bigger issue since it's something that can actually be changed, my personal view is the majority of the BCCA division got it wrong, and a repalcement can still advance reconciliation without the baggage or issues of DRIPA. That is something I will be watching for to see if Eby can bring the party and caucus arround. Because you can still advance all of the positives of DRIPA without adopting it in full. 

[u/Head_Crash]

Polls don't show that DRIPA is a leading issue. Reconciliation issues aren't a top concern for most voters. The top issues are Healthcare and Housing.

Only about 6% of voters consider this to be top issue, and the problems some have attributed to DRIPA only have a potential impact in areas subject to land or resource disputes.

Furthermore most of the concerns people have regarding this issue are based on misunderstanding and misinformation. DRIPA doesn't change the validity of land titles or grant indigenous people more rights, rather it's a requirement for the government to pass legislation that's consistent with rights that have already been granted to them.

Repealing DRIPA doesn't fix the faulty land titles or reverse those court decisions, nor does it prevent the courts from ruling on other invalid titles. https://www.ipsos.com/en-ca/top-issues-british-columbians

[u/Zomunieo → u/Head_Crash]

DRIPA may not rank as highest importance, but it’s an issue where the BCCP and NDP are more starkly differentiated.

“We will make housing more affordable and also preserve the value of boomer housing as a retirement fund” is a vague promise both parties can make.

DRIPA is also tied up with housing concerns.

[u/Head_Crash → u/Zomunieo]

DRIPA is also tied up with housing concerns. 

Not really. Repealing it doesn't change the validity of faulty land titles, which only exist in a few specific areas.