246. Bruce McIvor: Private Property VS. Aboriginal Title? Aboriginal Lawyer Explains

Aboriginal lawyer Bruce McIvor of First Peoples Law joins Aaron Pete to discuss Aboriginal title, DRIPA, the Cowichan decision, private property concerns, pipelines, Kamloops, constitutional democracy, and why he believes reconciliation is failing in Canada.

Transcript

SPEAKER_01 0:00

You've written about how reconciliation is failing indigenous people. In your view, what is the biggest thing Canada is getting wrong about reconciliation?

SPEAKER_00 0:10

Well, I think they try to pursue reconciliation at this at least saying they are, while at the same time continuing with a denial agenda.

SPEAKER_01 0:20

The Cowitz decision has raised serious concerns among private property owners. Do you think those fears are legitimate?

SPEAKER_00 0:28

I think that's been blown out all out of proportion.

SPEAKER_01 0:32

British Columbians are largely supportive of prestige seeing a new pipeline come through, and uh Coastal First Nations are not.

SPEAKER_00 0:40

What's causing that increased hostility over racism? From my perspective, it's largely been a misrepresentation of court decisions.

SPEAKER_01 0:52

When do you think reconciliation comes to an end? Bruce, thank you so much for joining us today. It's a privilege to have you back on the show. Would you mind briefly reintroducing yourself for people who might not be acquainted?

SPEAKER_00 1:12

Sure. Well, thanks very much for inviting me back on. I'm Bruce McCarver. I'm the senior partner at First People's Law. Um, and I'm originally from Manitoba. My family's one of the Metis families from the Red River.

SPEAKER_01 1:33

How did you get started in this work? If you could just give us some background.

SPEAKER_00 1:38

Oh, well, I never intended to be a lawyer. I'm a lawyer by accident. I was actually finishing my PhD in history, and then the like a lot of people, the scholarship and um fellowship money ran out, so I had to find some work finally to help pay my bills. And just by good luck, I ended up doing starting to do some work with some great lawyers doing Aboriginal law in Vancouver and started working with them and finally came around to the fact that kind of enjoyed the law more than academics. Um I joke with people, it says something about uh uh university professors that I prefer to hang out with lawyers. Um so I went back and did my law degree, and now here I am.

SPEAKER_01 2:45

You've written about how reconciliation is failing indigenous people. In your view, what is the biggest thing Canada is getting wrong about reconciliation?

SPEAKER_00 2:56

Well, I think they try to pursue reconciliation, at this, at least saying they are, while at the same time continuing with a denial agenda. So that applies the same for the federal government, for provincial governments across the country, is they continue a policy of denying rights. It's very rare that you get to a uh situation where rights are recognized, and then there's a commitment to implement those rights. So I think the biggest failure around reconciliation is the idea that government can say that yet continue to deny rights.

SPEAKER_01 3:46

I'm curious, I'm sure you've heard about what's going on right now with DRIPA. Premier David Eby's government recently went from pushing DRIPA-related legislation and amendments to suggesting it would be a confidence vote to saying it would no longer be a confidence vote, and then delaying this whole amendment until the fall. What did that whole episode mean to you? What were your reflections on the outcomes?

SPEAKER_00 4:12

Well, there's a couple of things with that. One, it just shows that you can't achieve so-called reconc reconciliation if governments don't follow through with the promises they make to Indigenous people. If there's no faith in the promises that government makes, we're never going to get to a better place. So that's a fundamental problem with the changes in petition that the BC government has um expressed since the court decision around TRIPA. The second point is that this is a long history of colonizer governments doing this. Their willingness to manipulate their own laws if they don't get the outcome they want. They'll go back to um if they're unsuccessful in court, then they'll go and change the laws to suit themselves. So that this is a sorry example of a government saying that it's going to do exactly that.

SPEAKER_01 5:25

I had Thomas Isaac, who you may know, uh, come on, and one of his chief frustrations was around this term must means must. And the premier was asked about what must means must, like why was that such a surprise to him as a legally trained individual himself? And the read that I got from Thomas Isaac, and I don't want to put words in his mouth, is just a surprise at how poorly handled this whole process of bringing in DRIPA, um, amending it, um, all of these discussions have been. And I'm wondering when you look at this government and how it's operated, do you agree with that type of analysis? Or do you think they're striving upwards, trying to achieve something positive and perhaps falling short?

SPEAKER_00 6:10

Well, they had been up until this change of course in the last few months subsequent to the decision. It made me think a bit, uh, you'll remember back when former premier Gordon Campbell was in opposition and was opposing recognition of indigenous rights. And then he became premier and he had a kind of come to Jesus moment where he flipped, and he became, in comparison, an advocate for the recognition of indigenous rights. What we've seen with our current premier is the opposite, uh, come a flip in the opposite direction. Someone who was a very strong proponent for indigenous rights, given what the circumstances are internally, I'm not sure. Maybe because they have such a slim majority, but then reacting in a really unrealistic and uh regrettable way to the court to decision and doing exactly the opposite of what I think he should be doing. Instead of committing, confirming the role of the courts to confirm, to clarify what the laws mean, instead of doing that, he came out and sounded more like Doug Ford undermining people's confidence in the in the courts.

SPEAKER_01 7:58

I guess one area I'd like your feedback on, because it's kind of my interpretation of what's taking place. I think it's true to your point that the premier wanted to reassure British Columbians after the Gitzala decision around mineral rights, that this is meant to work for everybody. So he rushed to try and take action and reduce the temperature in the room. Obviously, as you know, the Cowwichin decision, which we'll talk about in a little bit, had tensions rise between First Nations and everyday British Columbians. And so he wanted to bring the temperature down by promising that he was going to address this and that it would be a confidence vote so that everybody would be reassured that he's willing to address it. And then when he spoke to First Nations leaders, it sounded like internally within his caucus and First Nations leaders were putting a lot of pressure on him not to do that. And so he he started to step back quite a bit. Now, the piece that I'm not in total alignment with BCAFN or UBCIC because I think the error that I see here is that that was an act of goodwill to British Columbians and everyday Canadians that were scared. Uh, it wasn't going to undermine all of DRIPA. Uh, I'm aware of some of the changes they were proposing. It wasn't going to be a wholesale change. It was going to be some restrictions on future legislation so that the court wouldn't interpret legislation that hadn't been reviewed or modified to fall under DRIPA. And so that was an act of good faith. And then by stepping back from that, I see kind of two consequences. One, British Columbians feel shortchanged by that decision. And then two, you have the BC conservatives waiting outside, ready to repeal the whole thing. And so I don't see from a strategic perspective how walking away from the amendments was good for British Columbians or good if you're trying to stay in government and stay in power, because you've just kind of given a little bit more fire to the conservatives in their position. And I'm wondering, what's your feedback on my analysis?

SPEAKER_00 9:59

Well, I think that this goes back to your first question about what's the problem with reconciliation. Because what this demonstrates is that from day one with DRIPA, the government was saying this is an aspirational document. This is an aspirational commitment. We'll get around to changing the laws, making them align with DRIPA down the road sometime. And that itself is a problem because if it's always aspirational, it's never happening. It's always in the future. And the second point is that I think a lot of lawyers from day one read the legislation and said that's not what this legislation says. This says that no, you have a commitment now. You must do it now. So the idea that this came about as a surprise for the provincial government, it's kind of hard to swallow. They may have thought this is aspirational, but they have a lot of good lawyers there. They must have known that's what the commitment was. And the expectation from First Nations was that they would follow through. That's what they should have been doing doing from day one. They shouldn't have been trying to pass off this idea that it's simply aspirational. Do you like the DRIPA legislation? Do you support it? I don't know about like or not. My view on DRIPA gen of generally is that it's not a panacea. It's got a role to play. It sets out minimum standards, but it's not a lack of of uh legal obligations that's the problem in BC and across the country. It's the lack of political will to live up to those obligations. That's what we're short of. When it comes to free prior informed consent, the legal standard and requirement for consent isn't dependent on DREPA. That's been part of Canadian law going back to at least the Royal Proclamation of 1763. Consent is not something we need to rely on DREPA for, it's part of Canadian law in certain situations. Then the Supreme Court has confirmed that more than once. So what we need is we need provincial and federal governments to live up to those responsibilities. When the court clarifies the law, which is what the role of the court is, don't call the court into question. Instead, say yes, okay, thank you. Now we will do our best to ensure that these commitments are fulfilled.

SPEAKER_01 13:16

What are your thoughts on a lot of British Columbians are now coming forward very frustrated about these processes, feeling like their voices aren't being as heard as First Nations are in regards to particularly, I think, this uh opportunities around economic development and a potential new pipeline that's being discussed by Alberta? British Columbians are largely supportive of seeing a new pipeline come through, and uh coastal First Nations are not. And I'm wondering how do we make sure that we don't go down this path where we put First Nations and Canadians more and more at odds with each other, which is what it's feeling like to me in the political temperature, is that we're we're more on different pages now than we were 10 years ago. And I'm wondering how do you reflect on that and how do we balance the consent of First Nations with the interests of all British Columbians?

SPEAKER_00 14:08

Well, I think there's responsibility to be shared. There's responsibility in the hands of politicians to follow through on commitments that are made. They're responsible for not misrepresenting what the court says and what the impact of court decisions are. There's a responsibility, I think, on behalf of non-indigenous Canadians to frankly deal with these unsettled questions. The idea that you can just get on with things and ignore history and ignore the law and nor fundamental constitutional principles. I don't think that's the way to resolve it. Personally, I'm always amazed by the willingness of so many First Nations to try to find a workable way forward, the patience that they've shown for such a long time. I don't think there's a lack of willingness on behalf of most First Nations to find a workable, respectful way forward. I think what we need is we need non-Indigenous Canadians to hold politicians to account. Hold them to account. And then when that happens, I think we'll gradually get to a better place.

SPEAKER_01 15:46

The Cowichan decision has raised serious concerns among private property owners. Do you think those fears are legitimate?

SPEAKER_00 15:55

The effect of the Cowichan decision, I think, has been blown out all out of proportion. And I think a lot of this is because it's been tied up with politics, not with reality of what the effect is, and importantly, not the fundamental legal principles that it confirms. So Cowichan is important, it's not a surprise, I think, from for a lot of people who work in this who feel the flaw. The idea that the court would come out and say that granting fee simple private property interest does not on its own extinguish the aboriginal title. I think that's not a surprise. That's where most people practicing in this field thought when the question was finally asked of the court what the response would be. Where it's gotten off track is that there have been so many people misrepresenting the idea that fee simple interest can coexist with underlying Aboriginal title to the same land. I think legal legally that's sound. What we need now is a way to resolve that. And as the courts have said for a long, long time, this is up to the parties, this is up to crown, provincial, federal to work with First Nations in a respectful way to resolve how those things work together. It's not up to the courts to answer all the ways forward. The role of the courts is to clarify the law.

SPEAKER_01 18:01

Would you agree that because of the uncertainty this has created, that that uncertainty may lead to uh a loss in property value within the claimed lens?

SPEAKER_00 18:14

I uh not saying it. Um not a uh property uh Fraser. I think more importantly, non-Indigenous people need to recognize that this issue is finally coming home to proof. Is it just to say that, well, sorry, the government has been denying Cowichan title for over 150 years, and the fact that they've kept denying it itself means that the title no longer exists? I think most Canadians would recognize that is a fundamental injustice. I think the the best clarification, the best description I heard around college, and didn't come from a lawyer, didn't come from a politician, it came from my friend Frank at my local cafe, who was asking me about it one day, and he turned to me and he said, Bruce, if someone steals my car and drives away, it's stole my car, right? And they're someone who could just see the fundamental justice of recognizing, even though it's been denied for all this time, that Aboriginal title can continue to exist to the same land. Now let's get on with finding a reasonable, fair way forward forward.

SPEAKER_01 19:59

I guess what I'm hearing, and I'm just playing devil's advocate because these are the arguments I hear, is that uh imagine it wasn't your car that was stolen. Imagine it was your great-great-great great great great grandparents' uh car that was stolen. What are you owed in response to that circumstance?

SPEAKER_00 20:19

Yeah. So this is this misconception that because it it's not personally something that you started, therefore you have no responsibility. I reject that idea. Yes, we have a responsibility because we're part of this country, we're part of upholding the values that the country's based on, and the fact that those people continue to benefit from that wrong. They continue to benefit from it. It's not that someone stole a bag of money a hundred years ago and ran away with with it. No, you're on that land. So much of the value is tied up with that property, the same property, and people are benefiting from it now. So there's a responsibility, both historically and personally, to find a way forward. Now it's not on the individuals, I think that's important, but it's on government. Government needs to follow through with resolving this now in a fair and reasonable way.

SPEAKER_01 21:39

But those individuals are taxpayers, and any solution that the government comes to is ultimately funded by and paid for by the individuals of our province.

SPEAKER_00 21:51

And so? Yes.

SPEAKER_01 21:54

Well, you're saying that you're saying that there's an individual benefit.

SPEAKER_00 22:01

The huge wealth that has been extracted from First Nation Aboriginal titled land for all these years, when you consider the fact that now this needs to be dealt with. Yes, it needs to be dealt with, but that's because governments year after year, uh government after government, with the support of non-indigenous people, kept punting it down the throat. That doesn't make it right. That it needs to be resolved. I would hope that most Canadians recognize that their country stands for justice, it stands for recognition of Aboriginal rights, and that sweeping it under the rug now because there's a price to pay is not a fair, reasonable, and just way for uh forward.

SPEAKER_01 23:14

Now you might imagine this isn't my preference, but when I look at where we are right now, I can see that the pendulum was at one point in the early 2000s. Canadians weren't very interested in reconciliation. It wasn't a hot topic. Truth and Reconciliation Commission comes out in 2015. Justin Trudeau gets elected prime minister. There's a huge appetite over the last 10 years under John Horgan and Prime Minister Justin Trudeau to have the reconciliation conversation to try and address this. I'm seeing that pendulum swing back now again in the other direction, where we don't hear Prime Minister Mark Carney focus a lot on engaging with local First Nations, particularly around this pipeline. One of his ministers was supposed to meet with coastal First Nations and said he'd do it over Zoom or something like that. Like you can see that the investment isn't there the way that it was. Uh, as you've said, over the past six months since the Couch and decision, or sorry, uh since the Couch and decision, uh, there's been a lower interest from the provincial government to want to address this. They're also running massive deficits, so they don't have a lot of money to try and reconcile financially with First Nation communities. So I'm seeing that pendulum swing back. And you you mentioned earlier that you think Canadians understand this and can get on board with that. I'm, I guess, a little bit more skeptical, and I'm seeing that pendulum swing back, and I can see people already saying, we tried, it didn't work, let's move on. Um, and so I'm just wondering, how do you see this playing out over the next five to ten years?

SPEAKER_00 24:41

Well, I don't have a crystal ball, but this goes back again to your first question. What is the problem with reconciliation? Well, the version of reconciliation we've seen too much of is aspirational reconciliation. It's that maybe we'll do something in the future, maybe we'll do something that we don't that we don't think is too painful, is too painful. It's not hard for us to do, it's more rhetoric than reality. And so the idea that, well, you know what, that's not acceptable. That's not acceptable at law, and for some not Indigenous people to say, no, well, then it's the indigenous people's fault because they're demanding too much. That just shows a lack of commitment to the hard work of reconciliation. Um, I've I've got these shirts made up for my firm, and on the back they say if reconciliation is making you feel good, you're doing it wrong. Because there's been too much of that feel-good type of reconciliation. This is hard work. This is going to make people uncomfortable. When they're feeling uncomfortable, I think it's more likely that they're actually doing that hard work and we'll be getting to a better place. As far as what the cost might be, I think one of the things we all learned from the COVID pandemic was that it's not a lack of resources, it's a lack of political will. Because when a lot of non-indigenous people were in threat of getting sick and getting sick, there was no end to the money available. The federal government had unlimited resources. So I don't really accept the idea that, sorry, we love to do something for you, but suddenly we don't have the money. That's not a reasonable response response. The problem is a lack of political will to do the hard work that needs to be done.

SPEAKER_01 27:06

What do you think that ultimately means in the final analysis? Governments are supposed to represent the people. The people seem uh less eager to address this. They're supposed to derive their mandates from those individuals as citizens. How do we address this if this continues?

SPEAKER_00 27:24

Yeah, this is I've heard a version of that kind of argument coming out of some people in Alberta around the proposed referendum. It's a democracy, majority rules. That's not how Canada's legal system works. We have a constitutional democracy. That's important to keep in mind. It's not just majority rules. There are fundamental constitutional principles that this country is based on. That includes respect for minority rights, that includes respect for Aboriginal title and rights, and the hard work of reconciliation that that requires. So I don't accept the idea that sorry, majority rules, we're not going to do this. It's that way of thinking that's been going on in BC since the 1850s that's brought us to this situation now.

SPEAKER_01 28:36

We're in agreement on that. The Globe and Mail recently argued that there is no reconciliation without truth, noting that there has been no public confirmation of human remains at Camloops while also recognizing the real harms and deaths that connected to residential schools. How do you think Canadians should talk honestly about Camloops 215 without falling into denialism or overstating what is known?

SPEAKER_00 29:02

Yeah. I can't speak specifically to the facts of the residential school at Kamloops. I've not been involved in that, but I'm all for I'm all for truth telling. But the truth telling has to be on both sides. And so we were just having a conversation around Cowichin and Aboriginal title. That's where truth telling comes up. Here we have the court saying aboriginal title continues to exist. That's a hard truth that it seems like a lot of non-indigenous people do not want to accept. So if they're saying, hey, they're all for truth telling, let's start there.

SPEAKER_01 29:56

Thank you for sharing that. Do you think that we're in a place where we can where the public is also moving away from terms like settler, uh colonizer, and terms like that? Do you think that that's going to stay in the zeitgeist of our culture, or do you think that that's fading away?

SPEAKER_00 30:16

I don't know. I've I can't say where that's going. I think having a conversation about those terms can be really useful, not just because you're trying to decide which word to use, but in thinking about the language, it leads you into a more fundamental conversation. And I think that's really important when we talk about set of settlers, for example. I could see a role for that, but then it also gets a lot of people thinking, wait a minute, does that mean this land was not settled before non-indigenous people arrived? What does this mean to talk about settlers? I think that's a useful conversation about you know, colonization, that's an important term to be thinking about. I know our former Prime Minister Hart Harper infamously once said something along the lines of Canada has no history of colonization. Well, that is exactly the kind of conversation we it should trigger when we use those terms. Wait a minute, is that true? Let's look at that. So I can't predict what terms are going to be used in five or ten years, but I do think it's very important to be thoughtful about the language we use and when it helps have helps us to have a meaningful con of con of con of conversation, I think that can get us to a better place.

SPEAKER_01 32:10

I'd be curious as to your analysis. We've kind of talked about it a little bit around First Nations, as I and I agree with you, are largely willing to try and meet Canada and British Columbians where they're at. Uh, reassure, like Chief Wayne Sparrow did say, we're not coming after your private property rights uh with our Musqueam agreement. Cowichan saying the same thing about the Cowichan decision, that they're not interested in coming after private property rights. But I do see as we continue to go down this path, a growing division, more uh racism towards First Nations and Indigenous people, more negativity towards the indigenous file, more polarization. Felt like from 2015 to 2021, there was a real embrace by a lot of people I know that felt like this was a necessary and important conversation. And uh the other piece I'll just layer on to that is I also believe in 2015 we had balanced budgets. And when we're dealing with large deficits and people can't afford food in their fridge, that that changes where people are able to have certain conversations around the environment, around social issues, uh, and on reconciliation. And so it feels like we're in a different place than we were in 2015. But I'm just wondering, how do you digest, like if we continue to have this hard, this tough, these tough conversations and go down this path and we see more and more increases in racism, at what point do you think we need to change tact or or reconsider how we're operating where we're creating more polarization? I always thought personally reconciliation should bring the two back together. So we reconcile. But if that results in British Columbians having a lot more hostility towards Indigenous people, which is what I see a lot, how is this actually bringing the two parties to a conclusion where we're back on the same page?

SPEAKER_00 33:55

Yeah, that's a good question, but it raises the point about what's causing that increased hostility or racism. From my perspective, it's largely been a misrepresentation of court decisions, both with the getzel decision, but particularly with Cowichan. There's been a lot of misrepresentation about what that decision means, and that's fed into and I think led to this increase in hostility and racism against indigenous people. And I think that's what's represented. It's not what the court said, it's not the fact that the collagen said, We're we'll be part of this Canadian court system and so we'll use it, we'll go to court. That's not what the problem is. It's not even the precise outcome of collagen at lock. It's what people have made of it. I think that's where the that's where the concern is. Huntitz, you talked about the Globe and Mail. Gary Mason had, from my perspective, a extremely irresponsible opinion piece on this a month or two ago. We've seen a lot of politicians misrepresent Cowitin. That's what stoked the racism and the potential biplance. I think these people need to recognize they have a responsibility. They have a responsibility not to misrepresent the legal outcome of court decisions. And that makes me very concerned when I see it happen see it happening. Would you want to be a visibly indigenous person walking around Richmond? No. I think it's that's concerning because there's increased level threats of violence against indigenous people, and particularly against indigenous women and girls. We all know that they unfortunately often bear the brunt of this type of violence and racism. There's a responsibility for those who can to speak out and speak the truth.

SPEAKER_01 36:43

When do you think reconciliation comes to an end?

SPEAKER_00 36:47

Oh, I can't predict that, but I think the way we can get there, we can have a meaningful conversation, is to say that we will engage in a truthful, respectful way, regardless of where it takes us. The idea that certain things are are off limits, that we're not going to have a conversation about private property, we're not going to get to reconciliation if we can't have those difficult con of con of con of conversations.

SPEAKER_01 37:32

Do you have any metrics in mind as to how you would see reconciliation potentially resolve in?

SPEAKER_00 37:39

Well, I think one of the ways that it it gets to a better place is that we move away from these policies of denial. We also move away from the idea that certainty means that indigenous people give up their rights in exchange for a bundle of rights as part of a so-called modern treaty. I I don't think that's the way that we're going to get to true reconciliation. I think what we need to do is we need to confirm underlying principles that all sides hold in common, confirm those principles, and then ensure that there are processes in place that lead to a meaningful relationship. Too much of what's been going on from the government side, I think, is based on denial of rights, and that certainty means the extinguishment of Aboriginal title rights. I think we need to move away from that mindset and instead focus on a relationship that recognizes and implements the existence of those rights.

SPEAKER_01 39:10

I know you've written a few books. Would you mind sharing with people what those books are and how they can follow your work?

SPEAKER_00 39:16

Sure. Thanks. Uh well, my first book a few years ago was Stand Off. Um, can't remember the long I don't know, something like why reconciliation fails and how to fix it. So that first book is a series of short essays that's that speak to a lot of these questions. Uh, my most my more recent book was last year Indigenous Rights in One Minute What You Need to Know to Talk Reconciliation. That book came out of workshops that I've done all across the country the country for both ind indigenous and non-indigenous groups talking about uh Aboriginal rights, and I kept getting asked the same questions all the time. So I thought I'd put my answers to these very frequently asked questions into one book. So that book consists of a question and then a short answer from me that takes about a minute to read. Um, so that's that's um that that book for tick for particularly has been very successful in the last year. And I think that doesn't speak to perhaps the quality of my writing as much as the real legitimate interest that Indigenous and non-indigenous people have to get to a better conversation about recon reconciliation. Um, my firm First People's Law, we're very active on social media, and we've got an email list of about 20,000 people that subscribe to a weekly newsletter. So I encourage people to go to our website and sign up. Thank you.

SPEAKER_01 41:33

Fantastic. Thank you, Bruce, for being willing to join us today. I am trying to find the path forward that brings as many people along as possible and that makes sure that we honor history, but also find a path forward where we can all be proud of our province uh and proud of how we operate. And I appreciate you for bringing those enlightening views to us today.

SPEAKER_00 41:54

Absolutely. Thank you very much.