The B.C. Court of Appeal says a lower court judge used an “arbitrary boundary” to determine a First Nation’s Aboriginal title over a swath of Nootka Island off western Vancouver Island.
A three-judge panel says the B.C. Supreme Court made three legal errors when limiting the Nuchatlaht Nation’s claim over a 201 square kilometre portion of the island, finding the tribe had met the test for “sufficient occupation” when the British Crown asserted sovereignty.
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The 2024 lower court ruling found the Nuchatlaht had established title over coastal areas of the island, but the Appeal Court found the judge had relied too much on the findings of an anthropologist about the nation’s use of “remote inland” areas before and after 1846.
The ruling says the trial judge drew an “arbitrary boundary” in granting title over a portion of the area claimed, which wasn’t “based upon the Nuchatlaht’s manner of life, material resources, and technological abilities.”
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It says the lower court’s adoption of the boundary didn’t reflect the nation’s use of the lands as evidenced by the presence of thousands of “culturally modified trees” dating back to the late 18th century.
The Appeal Court says the Nuchatlaht identified territory that it “exclusively” occupied and used for hunting, fishing and gathering activities, in addition to other evidence that established its “strong presence on or over the land claimed.”
Following two recent court decisions siding with First Nations under British Columbia’s Declaration on the Rights of Indigenous Peoples Act, Premier David Eby is considering amendments that would weaken the legislation.
First Nations leaders have called on Eby to leave the bill alone.
The bill, known as DRIPA, requires B.C. to take “all measures” to align the rights of Indigenous Peoples with existing provincial legislation. Amendments proposed in a confidential letter sent to some First Nations leaders in B.C. on Monday say the government is looking to amend the bill to promise “ongoing processes” to align select legislation with DRIPA.
The provincial Declaration on the Rights of Indigenous Peoples Act, or DRIPA, was passed in 2019.
It’s based on the United Nations Declaration on the Rights of Indigenous Peoples, which requires free, prior and informed consent from Indigenous Peoples on matters affecting their rights, lands, territories and resources.
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The federal government has similarly adopted the UN principle and is working toward its implementation, though its view is it does not constitute a veto on development.
Eby told reporters last week his government is trying its best to work with chiefs across the province to address concerns about the court decisions. They both cited DRIPA and sided with First Nations on mining and property rights, which the provincial government has said isn’t the intention of the law.
One found the provincial mineral claims regime is “inconsistent” with DRIPA, and another recognized the Cowichan Tribes’ Aboriginal title on land along the Fraser River, with titles held by Canada and the City of Richmond deemed “defective and invalid.”
In response to the mineral claims case, Eby has said it’s “crucial that it is British Columbians through their elected representatives that remain in control of this process, not the courts.”
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“Too much rides on it in terms of our province’s prosperity and certainty going forward.”
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If the amendments are passed, it could complicate relationships between Indigenous Peoples and Eby’s government as it looks to get major projects built to boost its economy in the face of trade threats from the United States.
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Eby has been facing growing questions over the future of the legislation, and has been criticized over the process in which changes are being discussed.
The proposed changes have remained out of the public eye. The letter sent to First Nations leaders on Monday, which included a link to a document with details of the proposed amendments, said it was “subject to cabinet confidence” and was shared under a confidentiality agreement, which some leaders agreed to in order to allow for consultations.
The Canadian Press has viewed both documents.
Some First Nations leaders have told media they have yet to see the proposed amendments themselves, despite signing that confidentiality agreement.
The province is scheduled to host a briefing about the proposed changes with First Nations leaders on Wednesday, and those leaders are asked to provide feedback by 4 p.m. on Friday. A one-hour meeting for those leaders has also been set for April 1 with Eby, Attorney General Niki Sharma and Indigenous Relations and Reconciliation Minister Spencer Chandra Herbert.
The letter says the government is open to changes and acknowledges the “compressed timelines.”
The government document shows the existing wording of some sections of the law crossed out, with the proposed text of the changes underneath for First Nations leaders to review.
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The “Purpose of the Act” section, as currently written in the law, says it is “to affirm the application of the Declaration to the laws of British Columbia.”
The proposed change for that section change instead says the government will “provide for the ongoing processes of the government working, in consultation and co-operation with the Indigenous peoples in British Columbia, towards aligning enactments with the declaration.”
The document also shows the provincial government is looking to replace a clause that says the government “must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration,” and instead says the provincial government will work toward aligning specific laws “identified as priorities.”
It continues that the province “may prepare a new action plan” for implementing DRIPA “at any time.”
First Nations have said they do not support any changes to the legislation, while some B.C. Conservative MLAs have called for the law to be scrapped altogether.
The Union of B.C. Indian Chiefs, which advocates on behalf of more than 100 First Nations in the province, passed a resolution in February calling on the government to publicly commit to keeping the law as is currently written.
The Law Society of British Columbia has decried Eby’s intent to change the legislation in response to court rulings. In a statement released in February, the group said “politicians must take great care when commenting on judicial decisions and must avoid asserting or implying that courts are not properly playing their role.” Doing so, the group said, decreases confidence in the justice system.
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“The Law Society urges the B.C. government to reconsider making any proposed legislative changes that would limit access to independent courts,” their statement reads.
—With files from Wolfgang Depner in Victoria and Chuck Chiang in Vancouver
More than a dozen First Nations chiefs and even more band councillors and elders were at Alberta’s legislature Monday, calling on Premier Danielle Smith’s government to stomp out the push for the province to quit Canada.
“Our rights are being minimized,” Confederacy of Treaty 8 First Nations Grand Chief Trevor Mercredi told reporters.
“Our people are being minimized at every level.”
The comments came after First Nations chiefs across the province unanimously called on members of the legislature to hold a non-confidence vote against the government in part for how it has handled the budding separatist movement.
Opposition NDP Leader Naheed Nenshi tabled a motion to hold such a vote Monday, but it was promptly shut down by Smith’s majority United Conservative Party government.
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Government house leader Joseph Schow called it a “political stunt” and questioned whether Nenshi believes in direct democracy.
“Who do you think you are … to say Albertans don’t have a right to have their voices heard?” Schow told the house.
Chiefs and other Indigenous leaders in the gallery voiced frustration before leaving, with some yelling at the politicians below to denounce separatism.
“Traitors!” shouted one.
Cold Lake First Nations Chief Kelsey Jacko said after the non-confidence vote that it was an attempt to “hold the premier to account.”
“No matter what we say, (Smith) doesn’t seem to hear us,” Jacko said outside the legislature.
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“We have been trying to work with her and (her caucus) for years now. She keeps saying we have a great relationship. But how do you have a great relationship with someone who doesn’t listen?”
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Mercredi said he knew the vote wouldn’t pass but that it was important to take a stand.
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“We knew what (we were) in for when we came to this legislature,” he said.
“We’ve seen it time and time again — the disrespect that the MLAs have for our people in those rooms when they’re yawning, texting, leaning back on their chairs (and) smiling. It’s very unprofessional.”
Indigenous leaders have been vocally opposed to the separatist movement in Alberta. Multiple First Nations are challenging in court provincial legislation permitting citizen-led petitions that seek referendum votes, such as the ongoing campaign to put separation on a ballot.
While numerous Indigenous leaders were in Edmonton, others travelled to England, where a delegation from the Confederacy of Treaty Six First Nations is to meet with King Charles.
Grand Chief Joey Pete said in a news release he plans to discuss the separation push with the King and “remind (him) that our relationship is not with provinces or Canada — it is with the Crown.”
“Treaties are recognized in international law and any attempt to override them is a violation of the original agreements made between First Nations and the Crown,” the release said.
Pete was not available for an interview, and Buckingham Palace didn’t immediately respond to a request for comment.
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Alberta Indigenous Relations Minister Rajan Sawhney called it a “tremendous opportunity” for the delegation to meet with the King.
“First Nation leaders have a right to engage with the Crown,” Sawhney said. “I think it’s totally fine that they’re doing so.”
Sawhney said she was hoping to meet with some of the leaders at the legislature and that she believed she was addressing their concerns about the separation movement.
“I do engage on a regular basis, and I always do affirm that the Constitution is the highest law in the land, and Section 35 rights (which protect treaty rights) are entrenched in the Constitution,” she said.
“There’s no legislation, policy or decision that will ever supersede that.”
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Separation and what the NDP called a “fundamentally broken” relationship between Smith’s UCP and First Nations dominated question period.
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Nearly a dozen chiefs, many wearing ceremonial headdresses, watched in the gallery. At times, chiefs and other Indigenous leaders cheered and clapped for NDP questions, especially when Nenshi accused the premier of undoing treaty rights “step by step.”
Nenshi also accused Smith of ignoring the chief’s declaration of non-confidence in her government and pandering to both sides of the separatism debate.
Smith and her ministers said the government is trying to renegotiate its relationship with Ottawa and continue building on its connections with First Nations leaders, and that the Constitution is the “highest law of the land.”
“Sovereignty is not the same as separation,” Smith said.
Smith, asked how she would make a separatist petition constitutional, said it’s not her petition.
“We’re addressing the real grievances that Alberta has with the 10 years of mistreatment by Ottawa,” Smith said.
Meanwhile, the Calgary Chamber of Commerce released a report indicating 51 per cent of Calgary respondents believe the current separatism debate is affecting the provincial economy, with 93 per cent of those believing the impact is negative.
“Our province has worked to enhance its competitiveness and attract investment and labour, yet this conversation introduces a new level of uncertainty that reduces business confidence in growth opportunities,” president Deborah Yedlin said in a news release.
The federal government has updated its travel advice for the United States and is now urging First Nations people to carry a passport in addition to a status card when crossing the border.
Before this week, the government website said First Nations people could “freely” enter the United States for the purposes of employment, study, retirement, investing or immigration.
As of Thursday, the website has been updated with new guidelines.
The website now says First Nations people “may” be able to cross the Canada-U.S. border by land or water with their Secure Certificate of Indian Status, also known as a secure status card.
The website says acceptance of all status cards is “entirely at the discretion of U.S. officials.” Status cards and secure status cards aren’t accepted travel documents for air travel, it says.
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When crossing the Canada-U.S. border, travellers are strongly urged to carry a valid passport and use a valid machine-readable secure status card, the website says.
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The government says that as of February 2019, all new and renewed secure status cards are issued with a machine-readable field. The government began issuing secure status cards in 2009, phasing out older laminated, paper or plastic versions of the cards.
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“While you may have previously crossed the Canada-U.S. border with only a secure status card, (Indigenous Services Canada) now strongly recommends also carrying a valid passport when travelling outside of Canada,” says the Government of Canada website.
The government says people registered under the Indian Act entering the U.S. to live or work may also be asked to provide documentation to “prove the percentage of Indian blood required under U.S. law.”
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Mohawk Council of Kahnawake Grand Chief Cody Diabo, who serves as the co-chair of the Jay Treaty Border Alliance and sits in the Iroquois Caucus, said Canada should not be telling First Nations how to conduct themselves at the border and should instead recognize the Jay Treaty.
The Jay Treaty — which Canada does not recognize but the United States does — allows First Nations people born in Canada to freely enter the United States for employment, study, retirement, investment and immigration.
“Before they tell us what we need to cross the border with, they need to recognize that we have the free right by law to cross,” Diabo said.
“Our cards are enough with other documents listed in section 289 of the Immigration Act and upheld by the Jay Treaty.”
The Assembly of First Nations has warned First Nations people to be wary of crossing the border into the United States due to U.S. immigration enforcement raids and the detention of some Indigenous people.
AFN National Chief Cindy Woodhouse Nepinak has confirmed that at least one First Nations person had a negative encounter recently with U.S. Immigration and Customs Enforcement, better known as ICE, and that person has since returned to Canada.
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The case prompted the advocacy body to issue a statement warning First Nations members to make sure they have the right documentation and identification when crossing the border.
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In a statement, Indigenous Services Canada said last month it had been made aware that some people have recently reported the confiscation or damage of status cards in the U.S. It said the department can issue emergency status cards and will expedite requests from people who have been affected.
Mississauga First Nation also warned its members against crossing the border, citing ICE’s recent detention of Indigenous people. Three Oglala Sioux Tribe members were detained at a homeless encampment by ICE agents in Minnesota earlier this year.
Several other First Nations have issued similar warnings, including Six Nations of the Grand River near Hamilton, Ont., and Garden River First Nation near Sault Ste. Marie, Ont.
The Jay Treaty Alliance, a body representing tribal governments and First Nations communities on both sides of the border, is encouraging First Nations people crossing the border to the U.S. to ensure they are carrying their familial lineage letter, status card, long-form birth certificate and government-issued photo ID.
U.S. tribal members are being encouraged to carry their tribal IDs, state-issued IDs or driver’s licences, or a U.S. passport.
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—With files from Alessia Passafiume, The Canadian Press
More than 100 First Nations and First Nations organizations have signed a joint statement to B.C. Premier David Eby to uphold the Declaration on the Rights of Indigenous Peoples Act.
The Act, DRIPA, was unanimously passed by all parties in the legislature in 2019, with the provincial government stating that “B.C. is the first province to put in place the declaration on the rights of Indigenous peoples, to bring the UN declaration into law.”
The government is looking at amending DRIPA after a landmark court ruling in December that determined it was legally enforceable and not just symbolic.
On Dec. 8, the BC Conservatives asked Eby to reconvene the legislature immediately to repeal the act, and Eby said he wants to amend DRIPA, not scrap it, and is in no rush to call back the House before Feb. 18.
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On Jan. 29, First Nations say that the province issued a letter of notification regarding potential amendments to the Declaration Act and Interpretation Act anticipated for the spring legislative session and invited First Nations to participate in an expedited consultation and co-operation process, subject to signing a non-disclosure agreement (NDA).
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They said that the First Nations leaders who signed the NDA received materials from the provincial government.
“The province’s actions risk pulling all who call B.C. home back to a time of blame, conflict, increased litigation, and threats of violence against Indigenous peoples,” First Nations said in a statement.
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In the joint statement, First Nations say that despite recent court decisions that reaffirm the “crucial need to consult and negotiate, a negative narrative has begun to take hold.”
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They said this narrative wrongly blames First Nations for uncertainty, while ignoring the fact that B.C. was largely settled without treaties.
“If allowed to shape public discourse or government decision-making, this narrative risks pulling our province backward — toward a time marked by blame, conflict, increased litigation, and even real threats of violence against Indigenous peoples. That is not a future any of us should accept,” the statement reads.
“Recent calls to amend the Declaration Act or appeal court rulings are rooted in this fear-based response. They suggest that the framework we have built together is the problem, when in fact it has been part of the solution. These actions would not create certainty — they would slow progress, increase litigation, and grind projects to a halt as First Nations are once again forced to defend our rights and interests through the courts.”
First Nations say that B.C. can walk two paths — one of negotiation, collaboration and shared prosperity, or one that leads backward to a place of uncertainty and conflict.
