255. Warren Mirko: Aboriginal Title vs. Public Land — Who Controls BC?

Warren Mirko joins to debate Aboriginal title, Crown land, private property, UNDRIP, reconciliation, the Cowichan decision, Musqueam agreement, Joffre Lakes, treaties, and who should control British Columbia’s public lands with host Aaron Pete. 

Transcript

SPEAKER_00 0:00

Do you oppose Aboriginal title or only how the government is currently implementing it?

SPEAKER_01 0:05

What I'm opposed to are a new system of purported Aboriginal rights that are parallel or on top of constitutional rights that are actually in conflict with the Constitution of Canada.

SPEAKER_00 0:17

How do you respond to the criticism that First Nations never surrendered any of that land?

SPEAKER_01 0:22

I don't believe that all of the province could be actually considered to be Aboriginal title. It depends on what a nation can prove, and the onus is on them to bring their claims forward in court.

SPEAKER_00 0:33

What exactly do you oppose in DRIPA? The recognition of indigenous rights, the alignment of provincial law with UNDRIP, or consent-based decision making? Or all of the above?

SPEAKER_01 0:44

I think it's just a flawed framework for British Columbia that's in conflict with the Constitution.

SPEAKER_00 0:48

Should property owners just always be prioritized over the Aboriginal title claims? How do you find this balance?

SPEAKER_01 0:55

You no longer have an accountable governance system. You have limited democracy. And the public is going to be worse for that. And it's going to threaten our sovereignty in the province if we enable that to continue moving forward.

SPEAKER_00 1:08

What does the end of reconciliation look like from your perspective? Warren Mirko, thank you so much for being willing to join us today. I'm very excited to speak with you. We have much to discuss, but would you first mind just briefly introducing yourself?

SPEAKER_01 1:30

Yeah, thanks, Aaron. Great to be here. My name is Warren Murko. I'm the executive director of Public Land Use Society, a new nonprofit organization that started just over a year ago here in British Columbia, that I formed after looking at some of what was happening in British Columbia in terms of governance over Crown Land and that lack of information that was being shared with the public. So I spun this up in my spare time with the support of some others. And I had a full-time job, which I was doing. And as this grew into something bigger, I took over this full-time earlier this year.

SPEAKER_00 2:02

I'm very excited to get into these issues. I'll say from the outset, I'm going to put, I think, important questions to you in the hopes that we can have a deep discussion on the challenges facing potentially private property, Aboriginal title, and all of these issues today. But I just want the audience to understand I'm going to put the arguments that I've heard and that I'm aware of. It doesn't mean that I necessarily agree with them. My goal is to just give you the best form of the argument to counter so we can really understand these issues. Does that work for you? That does, yeah. Tremendous. My first question to you is do you oppose Aboriginal title or only how the government is currently uh implementing it?

SPEAKER_01 2:43

No, uh Public Land Use Society and myself support and recognize Aboriginal rights and title uh as defined in the Constitution and through the many precedent court cases that have happened uh pretty much since Delgamook. So there's been an evolution of uh what is Aboriginal title, how it is sought and proved by First Nations in court, and that continues to change with every new court decision, like we just saw in Cowichan. I think most Canadians uh support and recognize Aboriginal rights and the newer concept of title and how that unfolds across the country, not just in British Columbia. I think what my group and what I'm opposed to are a new system of purported Aboriginal rights that are parallel or on top of constitutional rights that are actually in conflict with the Constitution of Canada and currently don't offer much clarity or guidance on how we're meant to resolve these two competing frameworks. And that's what our organization has been writing about and speaking about, is since the United Nations Declaration on the Rights of Indigenous Peoples Act was brought into law through DRIPA in British Columbia, how we are meant to reconcile these two legal frameworks that uh both purport to look at uh Aboriginal rights and title.

SPEAKER_00 4:00

What do you think changed? Where did is it the Cowichan decision that really altered your perspective? What was the impetus between where courts were deciding? Because I've heard many argue that this is just an extension of the current jurisprudence and legal cases that have taken place. It's now interacting with people's day-to-day lives in a different way than other cases that happened up north that weren't as direct, uh, but that this is just a continuation and now it's starting to interact more directly with fee simple lands and um more urban areas.

SPEAKER_01 4:32

Yeah, I think I'll divide the two frameworks. I'll look at Cowichan under the lens of section 35 of the Constitution, which is Aboriginal rights. Uh, how that decision uh was determined in Richmond by Chief uh or by Justice Young was purely on the grounds of constitutional rights and the evidentiary test that was uh applied to the Cowichan seeking aboriginal title in Richmond. They succeeded in convincing the judge that they met the threshold or evidentiary standard that they could claim uh and prove Aboriginal title. And the test for aboriginal title is the exclusive uh use and occupancy of the land at the time of uh the Oregon Treaty in 1846. So the Cowichan put forth their arguments and they succeeded. Other bands, for example, the Samoasan, argued against the claim by the Cowichan, saying there was no evidence or insufficient evidence to prove regular occupation and exclusive occupation of the Richmond lands by the Cowichan, which had to cross over the Georgia Strait or Salish Sea. So First Nations themselves disagreed with the interpretation uh, or rather, with the judgment and the interpretation of the outcome uh in that case. I would say that is actually fantastic, that we have the longest court case in Canadian history with evidence being brought forward, negotiation and debate in the courts uh in a with a nation trying to prove Aboriginal title. And now you have all the parties that were involved federal, municipal, uh, uh provincial, and the First Nations all appealing that decision. What is fully separate from that, uh, and the next levels of court that it may go to is the United Nations framework that's now applied in BC and in Canada, and the lens that's required to look at what is Aboriginal title in the province for our case. How is that different from Section 35, which we could go into? Um under UNDRIP and the United Nations principles, claimed land by First Nations is owned by First Nations and the resources on it, and they are owed free, prior, and informed consent before any activities or actions are taken that might affect their interests on that land. That is vastly different from the standards of the Constitution, where there are only rights uh to land and ownership rights where you prove Aboriginal title. Now you don't have to prove Aboriginal title as a First Nation in British Columbia. You can claim territory as traditional, unceded, or or hereditary, and you seemingly get all the benefits of Aboriginal title without proving it. And now you have this joint or parallel framework in the province that's creating some real division and real uncertainty uh here at home.

SPEAKER_00 7:29

So you describe land uh controlled by the crown as public land. How do you respond to the criticism that First Nations never surrendered any of that land?

SPEAKER_01 7:41

Yeah, there's a concept, I guess, of unextinguished Aboriginal title that we have in British Columbia. There is unceded territory everywhere uh right now, and it changes, it's a fluid situation, but all land in British Columbia is claimed by 203 different First Nations. So we have unceded territory everywhere. But what could any one nation actually prove if they were to go through the rigorous test of proving Aboriginal title in court? It's probably not the vast swaths of land that they claim. And we know that because there are competing claims by other First Nations. These claims are mutually exclusive. They dismiss the claims of their neighbors and say that in some cases, 20 First Nations claim one part of the province, and only one of them is accurate or correct. They dismiss the claims of others on uh ethnographic, historical, uh cartological evidence, and more. So I don't believe that all of the province could be actually considered to be Aboriginal title. It depends on what a nation can prove and the onus is on them to bring their claims forward in court, or the better path is negotiate treaties, which are tripartite agreements between the federal, provincial, and first nation governments. That is a way that the standards of evidence and scrutiny and working with neighbors uh can all be brought under one legal framework to negotiate outcomes that benefit everyone. With the United Nations, yeah.

SPEAKER_00 9:10

Quickly, can I just respond to some of that? Because uh I think those are worth responding to. Very quickly, I would say you're correct that there's often this reference towards uh competing land claims. The the reason for that, from my understanding, and within my region, is because the federal government at the time divided us into several smaller nations. So in my region, we would have been called the Teat tribe, and that included several different village sites. But the federal government came along and recognized the village sites. So we're Chihuahua now, and there's Shohammel, and there's Yale, and there's other smaller nations, but we were all at one point one convening government system, and we were subdivided into smaller pieces. And so the reason that you see that overlapping claim is because some communities don't want to go back to that traditional form of government where there's one teat tribe governing over the whole region because they have interests and their members have interests and they don't want to move back to that system. Um, and some do. And so we're exploring that right now in order to reduce the competing claims that have taken place. The challenge, and this leads into your next point about we should go through the treaty process. I am pro the treaty process. I think the government, uh both federally and provincially, have really slowed down on the treaty process and has created this space. I have met with the provincial government and the federal government and cannot get a mandate to start having these conversations to resolve that. So I look at the landscape right now, it's very controversial. I would like to be one of the people resolving this to bring peace and finality, and I cannot get that going provincially or federally at the moment. And so you can see where what is my last option? Taking this to court, uh, which creates more division and more confusion and more fear, which we also don't want to do. So I feel like we're kind of, I'm just trying to share with you the pragmatic issues uh with these claims. So we're we're grounding it in the reality.

SPEAKER_01 11:07

Yeah, I think that's one of the challenges I see that I don't have a solution to except to negotiate in a legal structured framework, hopefully through treaties. I appreciate the complexity of what is now the division between different bands and tribes in the province uh seeking to carve out their traditional territory in competition or in partnership with other nations while negotiating with two levels of provincial and federal government. Uh, I've heard from and seen in different parts of the province uh tribes or bands that are not recognized by the government of Canada anymore, uh, or they're not able to enter negotiations for treaties because of the size of their bans. That doesn't extinguish their Section 35 rights, uh, whether it's on the coast or where I am in the West Kootenis. There are cases that have been brought forward that affirm rights and potentially title to nations that even exist outside of our Canadian borders. So I appreciate how complex this is and how we're meant to move forward after the division that you noted in the past. The only way is going to be negotiation with all of those parties at the table. What I see happening now, and I think my concern, and for many British Columbians, is the government is selecting preferred First Nations to deal with in negotiating land use agreements that are outside of title or treaty. It is saying openly that we support the purported strength of claim of some nations over others. It is saying we dismiss claims from outside of our modern borders that are the Canadian country, even though those nations might have had a historical presence in Canada and were the only exclusive users of some land, like where I am in the West Cootenies. So the government is prejudicing the outcome of these very live claims that are being negotiated and should be negotiated now every time it weighs into a preferential statement on which band it wants to recognize or cut a deal with behind closed doors.

SPEAKER_00 13:04

Do you accept that Aboriginal title continues to exist over significant parts of BC?

SPEAKER_01 13:10

It's hard to know. I mean, I think if we look at some bands and the size of the territory they claim, I would wonder where there's overlap. For example, in the lower mainland, several nations claim overlapping territory. They don't have Aboriginal title right now, except Cowichan in Richmond. I don't know what the outcome would be if they were to go through the courts and prove it, as the Cowichan did, or negotiate treaties like the Soasin did, uh, and what land you have left. They have reserve, well, they have their territory and they have traditional territory, which overlaps with now Cowichan, Musqueam, Squamish, and Slaywatooth. That's a lot of conflict to unravel to come to any sort of certainty or finality, either on Aboriginal title or for reconciliation. And so I think that discussion is so important to have and recognize these are fluid live claims that are being made. And they're they're changing right now. We're hearing from project proponents and recreation groups that have worked in parts of the province uh for years or decades that Aboriginal groups are now claiming the land that they work on that were never there before. They're brand new claims to the territory with requests or demands for consultation, consent, or payment before activities are undertaken on that land. So that means nations are making new claims this year to land that they weren't claiming in the past. This is very live.

SPEAKER_00 14:35

My follow-up question to that would be: what are your thoughts on the governing authority that First Nations should have should they be granted Aboriginal titles? So say for Cowichan, they've claimed that land. What governing authority do you think they should have?

SPEAKER_01 14:50

Well, when claiming territory, and let's step back from Cowichan for a moment, uh nations now, well, some nations throughout BC are claiming jurisdiction, sovereignty, or authority over their claimed territory. And that's not title or treaty land. That's just what's claimed and yet unproven. There's nothing in the Constitution that allows for governance authority over other what's otherwise public land, where the crown is the sole authority over that territory. And that'll lean into implications for access to parks, access for resource development, exploration, the freedom of movement of British Columbians through the province. The real question comes down to who is in control of public land, what's otherwise unceded or traditional territory. I would support that uh through treaty like Solasin or NISCA or Aboriginal title, that there is governing authority that can be held or shared between the government and the First Nation that has that territory. The mechanisms of that are still being fleshed out and are not fully defined yet. And I think that's great, is this is going to involve just like our precedence system on how to prove and affirm Aboriginal title. But the province is using UNDRIP to start to recognize unilaterally declared authority or jurisdiction over claimed territory and is left going, who's in control of the land? We don't know anymore. And I'm saying that the government doesn't know because it is facing this right now and disagreeing with nations that are claiming authority over areas like Joffrey Lakes.

SPEAKER_00 16:27

When you say the public is being excluded, what exactly do you mean by that?

SPEAKER_01 16:33

Oh, there's many examples. Uh if you look at the recent Musqueam title acknowledgement by Ottawa, they put out, buried in a fishing release, that they are recognizing at the federal level Aboriginal title of the Musqueam First Nation within their territory in the lower mainland. We don't know how much, right? Is it 6%? Is it 100%? It's it's not clear. It's just a recognition. But that was not shared with the public in a news release or in a briefing or any major public statement. That was made public by us, Public Land Use Society on X in early March, which then went to social media and broader media stations and spread like wildfire, as nobody knew what it meant because there was no minister or anyone available to answer questions when it was announced. That's a communication disaster, and we still don't know what that those agreements mean. Uh more pressing, though, is David Eby, the premier of BC, said reconciliation is the business of government-to-government uh relations, provincial, federal, and first nations. And he clarified Well, that Musqueam acknowledgement of Aboriginal title excluded the province, right? That's recognition of title over crown land, which is held by the province, not federal land. And the premier says he was not made aware. The Indigenous Relations Minister said he wasn't made aware from Ottawa. And local First Nations like Musqueam and Squamish, or sorry, Squamish, say we weren't made aware of this title acknowledgement. That's a failure of the definition of reconciliation by the Premier of BC. His own definition wasn't met, and yet he championed the outcome of this agreement, leaving British Columbians wondering, what is reconciliation? Where's the public on this? Where were they? Governments weren't included, First Nations or the public. And that's just a disaster.

SPEAKER_00 18:27

I couldn't agree more. I was very critical of that Musqueam agreement and how it was communicated. I reached out to all of the ministers to try and have them on the show to walk us through what was being proposed. Even getting a copy of the document, as you might be well aware, was not an easy task because there were uh different sections of it and they didn't share all of them at once. And then you had to go to some global news site to go and get a copy of it. Uh it was a it was a communications disaster. But it's also, I guess I'd be interested more broadly, it almost seems like they the governments are not reading the room at any level and recognizing that this is a concern, that this is serious. So to proceed with that after the Cowichan decision, after the political temperature was high, to proceed with this without doing a proper press conference, without having graphs and information and documents and pamphlets and town halls available to walk the public through it and say there's nothing scary about what's going on, just seemed uh irresponsible, disrespectful. I know the chief of Musqueam was frustrated by how the premier responded to questions about that. It makes Musqueam uh look weak in their negotiations, it makes the province look unaware and uninformed of different levels of government, and it makes the federal government look like they're doing things half-handedly. So I'm just wondering when you think about the context you see when you speak to people and what the government's doing, it just seems like there's such a distance between the two mentalities.

SPEAKER_01 19:58

I think in in that case with the Musqueam acknowledgement by uh Ottawa, that was a mistake and an oversight. It could not have been on purpose to bury it. I think they weren't reading the room of what was happening in British Columbia. And I'd say when I went to Ottawa to speak about these issues uh just a couple months ago, to my surprise, it was the first time many members of parliament and policy leaders and others were hearing about what was happening in British Columbia, which tells me this is going to come to a head probably in autumn in the House of Commons. It's just starting as the conservatives have launched a task force on land and private property and are just starting to get their feet wet on this very complex issue that we've been grappling with for about a year and a half. I would say this really started when the province uh proposed amendments to the Land Act in BC that would give co-governance authority to First Nations over all public land. That was announced by a law firm in a in a note online and then shared by a journalist in the Vancouver Sun, Von Palmer, and then spread to many industry and recreation groups. Government did not share that. So they pulled back those land act amendments and said, we have to do better and we will engage the province and British Columbians more meaningfully moving forward. And they didn't. They put it this whole concept of co-governance underground to go valley by valley and nation by nation for the last year and a half since. And you see it happen provincially. And for the the feds not to understand what was happening in British Columbia and have such a uh misconstrued pulse check with that Musqueam announcement was their fault and their fault alone. I'll just add the the First Nations who respond to this are not to blame for the confusion or the public. It's government's responsibility to make this information public and to share it with all the parties involved. So, of course, both sides are going to be frustrated finding out that their interests. Are being affected or decisions over land that they use, rely on, or claim are being impacted by others, and they had no awareness whatsoever. That's the main core issue, I think, and for public land use society is transparency, a lack of it, and the lack of ability for people to make informed decisions.

SPEAKER_00 22:20

I guess as a follow-up to that question, I'm wondering what should be disclosed during these land uh indigenous land negotiations and settlements that are taking place from your perspective.

SPEAKER_01 22:32

Well, I like the Treaty Commission and their process, which has online right now uh the different stages of negotiation that different bands are with uh and and with governments, what years they stalled at, how far along they've got in a multi-stage complex process that you can follow. And you can see traditionally claimed territory by First Nations and uh sometimes what's being sought. Having transparency in the process, I think is more important than the negotiating position of government, which I understand they would want to protect. Uh, the same as First Nations, as they're all working together, like we talked about, with neighbors, with overlapping claims, trying to cut deals for forestry tenure, mineral rights, access, hunting and fishing, and more. Uh, not all of that needs to be made public, but the general positions, maybe what's being sought by a First Nation and what the government is considering giving up, that should be shared so that the public is aware and they can make informed decisions, like at election time, about what's about to happen to their docks or public parks or private property. If the government is negotiating governance authority to give to First Nations or control over public and private land, that's a major shift in provincial governance that I think needs to be shared from the outset, that that's on the table. That's not on the table, not made public in the case of Taltan negotiations with the province and now the feds. Public Land Use Society did a freedom of information request to find out what the province is looking at giving away in negotiations with the Taltan and found that it's land governance recognition of title, maybe up to 11% of British Columbia, that's about to be carved off. None of that has been shared with the public. The government is not forthcoming in it, and so nobody has a clue and can't comment on it with any information.

SPEAKER_00 24:26

As you know, the temperature in the room's gotten quite heated. And I find you so far to be uh middle grounded about the path forward. We have organizations like Juno News that are really contributing to some of the fear when they say, like, we don't know if we own our property anymore, move out of BC because there's a fear of losing your property. Where do you land on this? Are there, uh I'm I don't want you to comment specifically on Juno News, but do you feel like there are some that are not uh thoughtfully talking about this, that are in flaming temperatures? Do you think private property is just a big question, Mark? Where do you land on kind of uh some of these key questions?

SPEAKER_01 25:03

Yeah, I think I think we're most concerned with public land in British Columbia, which is 95% of the province. Uh I use it synonymously with Crown land. It's owned by the province and held in trust or for the use of all British Columbians and First Nations alike. Crown land is where many First Nations go to hunt right now in their claimed territory, and where British Columbians go to recreate. Even all foreshore, all docks is Crown land in the province. And so Crown land is important for private property owners as well. I'm less concerned with the real or perceived threat to private property and fee simple title as a result of the Cowichan decision, because I think that's going to be uh appealed all the way to the Supreme Court of Canada. And I just I don't know what's going to happen with the outcome. I follow in line with some legal experts that suggest you can't have two parties with the exclusive use and title to land existing at the same time. But I would say that under UNDRIP, we have the same problem with Crown Land in British Columbia. You have Aboriginal title that's proven, and until then you have uh crown land, where the crown has the authority over public property or public land. But now under UNDRIP, you have nations that can claim territory, and the province seems to be acknowledging you have some kind of Aboriginal title that you don't have to prove anymore. So can Aboriginal purported title or claimed land coexist with the crown and its authority at the same time? I don't think so. I'm not sure how you can have a province in British Columbia with two levels of governing authority, claiming sometimes exclusive authority to that territory. It's quite confusing.

SPEAKER_00 26:49

Can I give you an example of where I've seen this manifest in a non-harmful way? So within the Stolo territory, we have an organization called the Soltamuk Stewardship Alliance. And so when somebody wants to do something within the region, they want to build something, they want to build a new well, they want to build a new bridge or something, it flows through the province as usual. But there's also a mechanism where it flows to this uh what's called the STSA, and they have what's called the People of the River Referrals Office. And that reaches out to the communities that have a claimed interest, like my nation. And we go through and the STSA goes, hey, here are maybe some concerns you might have. Uh, please let us know if you have any feedback. If there's no feedback, it just proceeds. They have a scale one to four on how serious it is, four being very serious, one being not serious at all. Uh at times, ones just go through and we're not even made, like we don't even prioritize it. Fours are where you're building a new pipeline, where you're doing something more major that the nation needs to be involved in or have a voice on. And so that process has existed for I think over five years now, going on like uh 10 or 15 years now, and it has not brought the country to a standstill or the province to a standstill. It has not created uh a large bureaucracy that's unmanageable. That the province trusts the nations to give our feedback. And it's almost a mechanism to make sure individual communities, which I would support for any British Columbian, to make sure their voices are heard when these types of projects are moving forward. And so I do think it's possible to have a co-governance framework. To your point, it matters very much how you do that. But I mean, one one other piece I'd put to you is there's been such a historic challenge with capitalistic systems being able to rectify the potential damage to lands. And now you have a voice that often are worrying about what is the sustainability of this? What is this impact on ecosystems and environment? Many that I think the province has shared more or less, depending on the level of government. And so I don't view that as a tremendous concern, but I'd be I'd appreciate your feedback. Where am I missing something uh in that analysis?

SPEAKER_01 28:59

Yeah, I guess I wonder is the duty to consult that's held by the crown does that extend to consent now and seeking consent? That's now nebulous because of UNDRIP applying provincially and federally. The framework you've described, I think, is is consultation between the province and uh local First Nations for a particular project that have scaled or varying interest uh and concern of impact. That's great. And that can include proponents, I imagine, as well, whether for for pipelines or small developments, and they should be a part of that. What I see is is of uh concern is nations saying, we don't want to engage the province anymore. We want proponents to negotiate directly with us, and we will set basically a pay-to-play or entry fee schedule for proponents to do anything on our land. What happens when you have five, ten, or twenty First Nations with the same barriers to entry, let's say $10,000 to initiate communication with the band for any proponent that wants to do a project, just to find out how much the project is going to potentially impact their interests. The province isn't even there anymore. It seems to have abdicated its responsibility or role in having the duty to consult. So where this goes becomes not co-governance, but exclusive governance. Some bands are saying they want to exercise maximum control over their claimed territory, or in working with the government, they want exclusive decision-making authority. So I think co-governance, depending on what that is, if it's uh in like in the situation you described, is more of a robust, comprehensive consultation framework that has a lot of value and can only get better and evolve. Moving towards consent or veto or exclusive decision-making authority between proponents and nations that exclude the province, exclude the democratically elected representatives of British Columbians over impacts on public land, not on treaty or title land. And that's where we get into a little bit of a democratic crisis. Nations exerting that authority over public land, and the government's no longer there with the seat at the table.

SPEAKER_00 31:15

What exactly do you oppose in DRIPA? The recognition of indigenous rights, the alignment of provincial law with UNDRIP, or consent-based decision making, or all of the above.

SPEAKER_01 31:33

And Section 35 rights have worked for the rest of Canada and all the other provinces. Uh, now you have this incompatibility. You have First Nations and uh project proponents suing the province of British Columbia for failing to meet its Section 35 uh obligations to balance Aboriginal and non-aboriginal interests. So imagine that. Some First Nations, because of that preferential treatment we talked about earlier, are left out of decisions and deals that the province cuts with its preferred First Nations, forcing neighboring nations to sue the government, not on obligations to UNDRIP that they're failing to meet, but on obligations to Section 35 that the government is no longer upholding. So you have conflict in the courts. The government says we want to stay out of the courts and don't want to negotiate Aboriginal title there, but then we'll go work and acknowledge uh territory of some First Nations and not others, forcing them to go to court. And here we are. Uh all of the above is really the answer. Um, there's nothing in the Constitution that provides for consent for First Nations on claimed territory before projects of provincial or national significance move ahead. Um, it's only for Aboriginal rights, hunting, fishing, gathering on claimed territory, but not land ownership. And UNDRIP conflates that and says, what you claim, you own. And you have the right to consent before anything is undertaken on that territory.

SPEAKER_00 33:02

Have you spoken to a lot of First Nations about your perspective on these issues?

SPEAKER_01 33:07

No, our organization is small. We've been hearing a lot from the public and some individual indigenous people, but not governments or representatives. Um, and we've talked with a lot of media, elected representatives in the province and now federally. Uh, we've presented in community halls to MLAs and MPs, uh, city councils and mayors, uh, provincial associations, both for industry and for recreation groups. Uh I think they are more equipped and better enabled to engage with their First Nation partners. Let's say for trail building on some areas, uh, for proponents looking to do mineral exploration, for uh forestry tenure holders and others, they have the capability and capacity to engage. And I know that First Nations as well face that struggle or capacity issue with how to engage with all these different proponents and groups. And I definitely don't want to get in the way or add any work for anyone. But I'm curious to learn more.

SPEAKER_00 34:06

I guess I'm wondering about that because all I'm thinking is uh to your point, what I'm seeing is First Nations are only speaking to the province. The province, as you know, is led by an NDP government, which is very sympathetic to First Nations people. And I'm not saying that's a necessarily a bad thing, but I feel like governments are mucking up reconciliation, no matter how you cut it, even if you think it's a good thing, what Musqueam's done, um, that that wasn't done well. Even if you think that the the tall ten agreement is a good thing, the way it was communicated to your point was not properly done and making sure everybody was properly engaged, and that citizens who pay tax dollars into their province have a voice at that table and a process to share grievances, concerns, fears, all of these things. And so my fear is that these two are only speaking to each other. And I feel like I'm one of very few who are willing to speak with individuals like yourself, individuals who are skeptical of where we're going on reconciliation. And my fear is that we're we're somewhat going down a path and the two sides aren't speaking to each other anymore. The First Nations, if you question Dripa, if you question whether or not this is their stolen land, you're not even a part of their conversations. And then for individuals like yourself, if you're only speaking to the people angry, we just have two siloed groups that are not communicating with each other. So there's no kind of bringing down the temperature amongst the two where we can kind of agree on some things. I'm wondering what do you reflect on that? How do you think about the fact that you haven't engaged as many First Nations on the ideas you're putting forward that might be in the long term better for them?

SPEAKER_01 35:46

I think there's a real question for me about what is the representative body or engagement tool to get a pulse check on what indigenous peoples in BC think about these issues. Is it uh the First Nations Leadership Council or the Assembly of First Nations or others? I've I've heard your critiques of those groups and some of the positions they take. And I think I share those. And I love that you've got guests on who are tackling these tough questions uh with you. And some of them are not answering them uh in ways that I think would support public discourse, which I'll get to in a moment. But having these discussions is key and not looking at representative groups that claim authority or representation of some purported monolithic First Nations entity in the province. If there's 203 different bands here, I don't know that any group or organization could accurately say we represent all of their interests. So who do you engage with? I think we have to go uh territory to territory. We see this in some groups in recreation that have citizen-led reconciliation, where they're looking at if we're going to go fishing on a territory to avoid conflict and have an understanding of what recreational groups want to undertake and what First Nations expect, we go and engage in dialogue. And that's a process that is citizen-led and that's working. Uh, governments certainly, I think, are trying to own the definition of reconciliation. They're sure not publishing what it is or when it ends. But anyone who has questions on how they can contribute to it or is it being unfolded uh in a responsible or effective way, they get shouted down. So look at uh Minister Spencer Shander Herbert of Indigenous Relations and Reconciliation was on your show and you asked him, What is the end of reconciliation? And he couldn't answer what the end is. He didn't have a definition for it, when it might end, what's involved. So it seems to me to be endless or limitless, and yet it commands every ministry's actions in the province right now, through mandate letters from the premier, that reconciliation is a key driving force in the province. But no one can define when it is gonna end or what the KPIs are for it. And the public is left out of that discussion now as a result. How are they meant to participate in this? What is the public's role in reconciliation right now if it's government to government to government relations? And now the governments are leaving each other out of it. The public is on the side looking at this, going, uh, seems like the province is being renegotiated with us in the back room, and we don't know what's happening or where this is going. And I think they're not going to tolerate it for much longer. And that's where I get really worried about the future public discourse and reconciliation. And I blame the government for the uncertainty and outrage that public and First Nations have because it's the government's job to make this information available unless they they send reconciliation off a cliff.

SPEAKER_00 38:51

What would you like to see them do? If if we had Minister uh Spencer Chandra Herbert what would you what would your message to him be?

SPEAKER_01 39:01

Well like uh another guest you had Bruce MacIver, both have said what I think is the right message. We should have honest uh public discourse about reconciliation in these court decisions. But then they turn around and say any interpretation other than our own is misinformation, uh fear-mongering, racist. You know, you cannot say, let's have a public discourse on these complex topics and then say our interpretation of a court decision is the only one that stands, and anything else is dangerous. Well, that is going to shut up the public, send them underground or online, and ferment hate and frustration and lack of information and education. And that's the problem that we're here to help avoid. And I think you're doing it by having guests on, who's, for many of them, their mandate is to inform and educate the public, just like our society plus. Our job is to ensure people can make informed decisions. If that means they're outraged, that's okay. But it can't be from a position of being fearful of being branded a bigot or canceled. So the minister needs to put his money where his mouth is and enable that public discourse without silencing those who disagree with him or his government's position on reconciliation. And maybe before he directs massive governance governance changes in the province, he can try to define how that's contributing to reconciliation and what the end of that might look like for British Columbia.

SPEAKER_00 40:34

As a follow-up to that, I guess in that conversation, the piece that I felt like was lacking, I felt like I agreed with the minister's sentiments on a lot of things. But uh, when I spoke to the premier, he had talked about like we need to do a better job of explaining why this is a good thing, why this is working. And then I followed up with the Minister of Uh Reconciliation and Relations, and he didn't really know what I was talking about and didn't have like uh this is how we're gonna get the word out on how this is all so beneficial for British Columbians and how this is the greatest thing since sliced bread. And maybe it is, maybe I'm maybe I'm missing something, but it that's not the message I feel like British Columbians are telling me, and that's not how they're feeling. And so I guess I just like how hard is it to have a section on a website that the people can submit comments, feedback, guidance, recommendations, and we can start to track like where is British Columbians on these things? What innovative ideas do British Columbians have? One of my favorite things of being a First Nations chief is I don't have the best ideas. I rely on my community to tell me what they want, what's gonna work for them, what they need, what what improvements that I can try and deliver for them to improve the quality of their life. I don't have if I came in and was just a dictator and said these are all my ideas, they're obviously gonna say, that's not great, I didn't like that, you should have done it this way, because I'm not speaking with them. And I see Minister Spencer, Sandra Herbert, set up these little town halls on the street. And I think that's so that's exactly what democracy should be. It should be for the people, by the people. But then on cases like this, it's like we're we're not having town halls about it. And I feel like the the temperature would come down if we were just to have you, me on a stage discussing these things, getting feedback from people, getting their insights on what's not working for them. You're hearing a lot of this feedback. I'm hearing a lot of this feedback. I just don't know if the government is aware of this feedback. I don't always know if they're hearing it the same way I am, or if, or if they just don't treat it with the respect that maybe it deserves.

SPEAKER_01 42:36

I think if the government really wanted to share this information with the public, there's nothing stopping them from doing it. And I know because I worked in the federal government in communications, I worked for provincial crown corporations for most of my career. Some of the things I've seen, like the government releasing the Squamish Land Use Agreement, was deliberately designed to ensure the least number of people read that agreement when they published it to minimize public awareness. That's purposeful. Never in my career would we release a major public governance and transformation document before a Canada day-long weekend. You do that to bury information. I don't believe for a moment the government is genuine or interested in having the public participate in this discussion. I think it's ideologically driven. And the premier has said we have a framework we're unfolding. The Haida title agreement is a great template for the province. And all of those agreements and the frameworks they're talking about are unfolded secretly without public awareness. There's no input mechanism until the agreements are done. Then the government launches, like right now around uh uh Gambier Island, a 30 day public input window on some new land use order. But the agreement's already been done a year ago. There's no way the public can change the direction or Or course of what's happening in the province. So the public is not really going to be keen to participate in small 30-day engagement sessions that the government puts on its small websites. Why aren't they out there doing press conferences all the time about shifting governance and control of the province? Where's the mandate for that as well? It's unclear to me. And most communities I talk to are blown away at what's happening throughout the province. They don't know that the small issue they're dealing with, whether it's about docks, land governance on a lake, uh park access, is shared by other communities throughout BC. There's no cohesive understanding that this is a massive provincial undertaking by the province that is going to impact all communities and all First Nations. And we only hear about the big deals that are being cut with the biggest nations once they're announced and publicized as somehow supporting reconciliation. And Aaron, every land use agreement, let's say with the Tall 10, the province will say was done as a partnership and it supports reconciliation with First Nations. Well, I'm sorry, it does not do that. That's an agreement with one band, leaving 202 bands out of it with no revenue sharing. Most bands in BC don't even have golden triangles of mines. They don't have vast forest tenures that they're ever going to benefit from. How are they going to negotiate and work with the province to get a fraction of what the government's signing away in other parts of the province? It's not fair what's happening right now, and there's no mechanism to distribute that wealth equally among First Nations.

SPEAKER_00 45:38

Did you that was actually uh Thomas Isaac's criticism as well? Did you hear that interview as well?

SPEAKER_01 45:45

I I did. I mean, 203 bands, uh, some of them claim Lactolitan 11% of BC. First of all, I don't know how they could ever claim to have controlled that amount of territory in 1846. Uh, the province seems to be acknowledging they're going to control that much land, but what about the other bands who claim it right now? Again, that's a fluid live claim, and the premier seems like he's already made up his mind outside of the courts. You have small bands in the rest of the province trying to have a seat at the table and engage with proponents, and they might have just two admin staff, and they're working with guys coming in with mining, oil and gas, forestry, recreational clubs seeking permission to build a trail or maintain an old one. There isn't the capacity for all of this engagement. And I think the province is looking at only working with the biggest, richest, and most populated bands in the province to sign deals, uh, carve off governance and authority. And I don't know where that leaves the rest of the province, both the public and indigenous groups uh in BC.

SPEAKER_00 46:48

So if a First Nation proves Aboriginal title, should the province be able to approve mines, logging, roads, or pipelines on that land without its consent from your perspective?

SPEAKER_01 47:00

Well, that that changes what the legal requirements are uh and what consent is required in the Constitution. So I think that's well defined, and there's going to be a lot more collaboration, just like there is on treaty uh lands, uh, than there is just on claim territory, right? Uh claiming land does not provide for governance authority or jurisdiction over it. The province should condemn those statements when they're made by First Nations, whether Taltan up north or Lillawat around Joffrey Lakes, there is no jurisdiction or authority uh over that territory. It has to be proven. This has to exist in law or doesn't. And the province, every time they don't condemn or challenge those statements, they encourage others to make the same type of claims. And it just confuses where the province is going and who's in control of public lands.

SPEAKER_00 47:53

Why should the crown always have the final say from your perspective?

SPEAKER_01 47:58

The crown is the only entity responsible to the public interest through a democratic system. And the crown has underlying authority over this entire territory, uh, except in some cases, like we've discussed. So if you're gonna have co-governance or exclusive authority by unelected groups that don't have to act in the public interest, uh, but somehow are going to exercise authority over public land and resources, you no longer have an accountable governance system. You have limited democracy. And the public is going to be worse for that. And it's going to threaten our sovereignty in the province if we enable that to continue moving forward.

SPEAKER_00 48:38

You emphasize certainty for today's property owners. I'm just wondering if you can help me walk through, because First Nations argument would be we've been left with uncertainty for 150 years, not knowing when we're going to be able to resolve this, if they can't get into the treaty process, like my community. There's this uncertainty that's just loomed over us for a very long time. That is starting to impact property owners. And I'm just wondering like, should property owners just always be prioritized over the Aboriginal title claims? How do you find this balance?

SPEAKER_01 49:12

No, I look, I think the province is going to look very different in the future from what it looks like today. Uh if treaties are the way forward as we propose, you're going to have a lot more treaties to negotiate that will change the landscape of the province. Uh that probably means the Treaty Commission and that whole framework and apparatus needs more funding, more committed timelines and personnel and support to enable First Nations like yours to engage in these complex negotiations and to work with neighboring nations to resolve overlapping claims, right? You'll never have title or treaty if nations are disagreeing with each other on irreconcilable in differences. So there has to be one legal framework that's resourced and has goals in mind. Like to be reconciled should be the final goal for British Columbia and First Nations. We might never get there where all 203 nations are reconciled with the government or with their neighbors. But moving forward, we have to enable a system that can let them one by one or in batches seek certainty through treaty and wrap this up or or or start to wind it down so that it's not perpetual, endless, and limitless negotiation. I just I don't see how Terry T. G., the regional chief of the Assembly of First Nations can really suggest reconciliation should take generations. I don't think people living on reserve have generations to wait for things to get better, to wait for certainty, uh, let alone the public, which is not going to tolerate unborn children and those in the future having to go through what we're going through now. Why should anyone not born today bear the burden of what happened seven generations ago? How come we don't have a decision to move forward and targets timelines that seek to resolve this within your and my lifetime? It's beyond me the government can't answer that or set those as its targets.

SPEAKER_00 51:18

So if you were responsible for resolving this, what would your alternative look like?

SPEAKER_01 51:24

Well, we need to resource and support the treaty process. That is what leads to certainty. Only treaties protect private property as well and involve from the outset the federal and provincial governments with First Nations. We talked today about uh the Musqueam Agreement. Ottawa didn't inform the province. We talked about Haida Guay a little bit, where the Haida negotiated deals uh bilaterally, one with the province and one with the federal government to ensure it wasn't perceived as a treaty. And none of that was shared with the public. That's not going to work moving forward. We need to be involved and brought along. We have to have transparency in the mechanism and process. But more important than that, we have to have fairness in the outcome. People need something to believe in beyond the process and beyond the government negotiating this in secret. I want to know what the targets are, what they look like, so that I can support it as a member of the public or with a representative body. And the government hasn't given us that right now, have they? So how is the public meant to support reconciliation when they don't know what the end goals are, let alone the mechanistic process that's delivering it? Both of those are absent in BC and need to be resolved through the treaty process.

SPEAKER_00 52:42

I asked the minister this and you mentioned it. What does the end of reconciliation look like from your perspective?

SPEAKER_01 52:53

There's a definition problem with reconciliation, so there's two answers at least. Reconciliation is either underway right now through section 35 and court cases that continue to evolve and enable nations to prove Aboriginal title. That's government to government and to First Nations, and the public is involved, either through treaty negotiation or usually through awareness of title cases in the court. If we look at the legal framework of UNDRIP, reconciliation by the province and maybe now Canada seems to be an endless, limitless process. It's not about an outcome or a goal, it's about working on uh perpetual resource and revenue sharing, uh, governance authority given to First Nations, not even co-governance, exclusive authority over public lands with no end in sight. Indeed, it does seem to be generational. And I think the public now needs to decide which one is it going to favor and what is it going to tell its elected representatives that it wants to see moving forward. Is reconciliation meant to go on with no end? I don't think so. I think reconciliation has to have an end in sight that we need to work hard towards and work harder. If it's endless, you encourage people not to contribute their maximum effort and effect. And we can do better on reconciliation in this province and in Canada for sure.

SPEAKER_00 54:16

You mentioned Joffrey Lake, and I would just be interested in your take. Uh, I'm trying to get Caroline Elliott on the show to get her perspective because she's been one of the loudest voices on this issue of First Nations having an interest uh in an area and wanting to practice uh their traditions and their culture during a set period of time. I think it's something like two weeks, you can correct me if I'm mistaken, um, to practice their culture and have it private to them to be able to utilize. And I just think about like the history of so many cultures where they have traditional sites, uh historic connections to those sites to practice their culture, to hunt, to fish, to practice ceremony. First Nations, as you might know, they have vision quests. I'm not sure if Joffrey Lake has uh, like the Little Wat nation has that same process. But where you go out and you're disconnected from technology and you're grounding yourself in this, and they want to practice that on the lens they have for thousands of years. Caroline Elliott was against that because it doesn't, to your point, benefit all British Columbians. But when you put it into context, like if I were to ask her, well, what about people in Jerusalem and their holy sites? Well, this is a culturally special site for this First Nation community. Like, where what what rules are there to having culturally significant sites? How do you grapple with that specific issue?

SPEAKER_01 55:42

I think the first dry answer to your question is what does it say under the law about Aboriginal groups having the exclusive ability to utilize public lands? If they don't have Aboriginal title, that exclusive use is not provided for under the Constitution. There's nothing stopping the Lillawat nation or any other First Nation from going out into public land, whether a park or uh or just general crown land in the province and using that land for those cultural or spiritual reasons like you've described. Uh, when we're talking about exclusive use, what that extends to is prohibiting non-indigenous people from accessing public land. That's not title or treaty land, it's just claimed territory. That's where we enter a slippery slope, where this becomes about control of a jurisdiction and exercising authority over unproven Aboriginal title land. That's the problem I think many groups are seeing, and that's what we're hearing from British Columbians. There's a reason we got half a million engagements about Joffrey Lakes park closures last month, is not because all those people utilize the land. It's because they're worried about the freedom to travel in the province. If we allow any First Nation to deny entry to public land for any reason, uh but on ancestry grounds, then the whole province uh could see the same thing happen. You could see parks, public areas, or highways blocked by First Nations for the same reasons. In Drawfree Lakes, we understand that British Columbians really value and connect with the land in a way lots of other countries don't. That's why we get so many visitors to our country to enjoy using our Crown land and other First Nations who travel around the province as well, who aren't all blessed with the same uh uh geography. To deny access on that uh non-indigenous grounds is what's resonating with the public and frustrating them. And because it was unilaterally declared by the Littlewat Nation, the government then said, we don't agree with the proposed closure, but we will enforce it and then we'll go negotiate on how long it should be. Uh, three years later, the government and the Littlewat nation still don't agree on how long the park should be closed for, which leads back to the question of who's in control of that public land. That's not Aboriginal title land.

SPEAKER_00 58:04

But just going to their point, like could you just could you understand where Little Wat Nation's trying to come from on this? Where they're like, hey, we've got like these cultural sites we want to go to. We don't want other people uh involved in that process. We just want that private for right now. I think it's sitting at a few weeks uh where it's officially closed, if I'm not mistaken.

SPEAKER_01 58:24

Yeah, well, there's no legal ability for that nation to close that territory, right? Uh you can't deny access to people based on protected characteristics like their ancestry or or or identity. And so you have a legal problem, which leads to potentially some kind of constitutional problem of who's exercising authority and governance over this public land, who's in control of it. I understand uh the concept of of what they're saying that they want to engage in certain practices on that territory. Why does it have to be exclusive if that's not provided for under the constitution? Uh their claim territory is one of the largest in the province. And until they prove Aboriginal title there, I wouldn't entertain or or prejudice the outcome that anything is actually proven or credible as theirs. I would want and I would expect the province to withhold from making judgments, because there could be overlapping claims there as well. There's nothing stopping them from using that territory and that park right now for any purposes that they have. What they're seeking is exclusive authority and control over that public park, which happens to be one of the most popular parks in the province.

SPEAKER_00 59:34

I guess my uh critique would be like that all seems very academic from the reality that I think you and I can both likely agree without proving aboriginal title, that they have extensive evidence that they've been there for thousands of years. Um, and the process to claim aboriginal title, as we've both agreed, can be complicated. Either you have to try and get a seat at the table for a treaty negotiation, or you have to go to court to negotiate. And so there's this impetus to just meet where the rubber hits the road for some of these communities and go, okay, you and I, like it's not like they're claiming land, which is, I think, part of the issue with Cowichan. It's not like they're claiming land in the Kootenis that's nowhere near where they're currently occupied or living. They're right near there, they're right near Joffrey. Like they are one of the closest nations to Joffrey. Like, it's not surprising that they might have some connection to that land. And to your point, it's beautiful. And so you can understand why First Nations might have practiced culture, tradition, and had a history connected to that location that, of course, British Columbians want uh to visit and experience. But I guess my counterpoint would be 365 days a year. Right now, I think they're only getting like 2% of that uh at this time, like a very small portion of time to that land to occupy privately and to practice their traditions, wear their regalia, all of these things. And like, I don't know if you go hiking a lot, but you go hiking, people leave garbage. Uh, sometimes they bring out party supplies and they're they're doing other uh recreational activities out there to give them some space for that. It just doesn't seem as terrifying, as harmful as uh some of these people coming forward are making it sound.

SPEAKER_01 1:01:17

I think we have to look at what the impact of that precedent would be for the rest of the province. If any nation can claim territory and jurisdiction over it and authority or deny entry to Canadians from that otherwise public land, then we don't have Crown Land or a province anymore. We don't have a government that's in control of its own lands and borders. You've got 203 nations that could start exercising the same authority and closure throughout the province. There has to be one authority over public land, or this whole exercise is put at risk because this is a test to see who can control that territory for the intent and purpose of spiritual or recreational use is one thing. But other territories have resources uh or major thoroughfares for public access. All of that is at risk by uh uh of being undermined by allowing any group to say, we have authority over land that's not proven as Aboriginal title that can't be allowed in the province. Remember what happened last year when their uh desired and demanded closure wasn't met? They blocked the highway and held a protest on it. If that's going to happen in the rest of the province, there's a serious constitutional crisis awaiting all of us on who's gonna be in control of the province. For any territory and what they might say they want to do there or have done historically, again, they have the vastest, one of the vastest claimed territories uh in the area, but it's not proven. Uh, and so where they might have been up in the mountains or at that lake, I haven't seen any any evidence or assessment that that's proven or archaeological studies of use in the past. It's just claimed. And this is happening all throughout the province that I think is a bit presumptuous for anyone to weigh in on the validity or strength of those claims until they're scrutinized and the evidence is assessed. Power, authority, and jurisdiction are granted by law, and it does not exist over that claimed territory right now. And if we act like it does, then the province is threatening its sovereignty everywhere, not just at Drawfree Lakes. And that's why people are concerned about this one issue.

SPEAKER_00 1:03:36

Do you think that the BC Conservatives have the right path forward on this issue?

SPEAKER_01 1:03:41

I think it's hard to know where they are now because they've had a leadership uh election. Uh, they've been a little bit quiet this summer. Based on what we saw in the legislature before, uh, they've raised lots of great questions about, and the Greens have as well, about who's in control of Joffrey Lakes, how do we move forward with uh dealing with overlapping claims to the use of land or ownership of land or who's going to benefit from resources. This is a discussion that needs a lot more dialogue and a lot less cancellation and uh and insults flung by people. It also needs less reflection by political parties. And if I could give any party advice right now, or the conservatives, it would be to stop looking in the mirror and move away from labels and tribalism and identity politics and focus on what the public is thinking and conduct polling to see where this discussion is moving. Where we are now, Aaron, is way different than we were a year and a half ago. Where reconciliation has gone is is so damning and terrible. And I blame that on the province of British Columbia for not sharing information with the public. And that's something the conservatives can learn from find out what the public thinks about this and help them make informed decisions about where it should go next.

SPEAKER_00 1:05:03

I think we can both agree that that is the most important path forward right now. Warren, thank you for being willing to do this. I really appreciate the approach that you're taking. Uh, it feels like adult-in-the-room energy, where it feels like we just don't have any clear answers, uh, clear direction. Like, I'd just love to see a map of like where does the provincial government think this goes? Like, if you get there, if you do this for 20 more years, where are we? What does the province look like? Just tell me what that looks like. And the conservatives, just tell me where you think you're going. Uh, so I understand what the the grand vision of reconciliation is. And we seem to get so stuck and fair enough on these very specific technical the Couchon decision versus the Musqueam agreement and how those interact. But it's like, what like where's where's this road taking us? And is it the right direction? Is it the wrong direction? Is this gonna make us a stronger country? Is it gonna make us a more divided country? Like, what are the ramifications of your grand vision for where we're going? And I just appreciate you trying to get us back on that track.

SPEAKER_01 1:06:05

No, thanks, Saren. You're bringing this conversation forward and bringing on guests and and publishing everything. I think helping us find a vision for uh something to believe in. Mechanisms and processes that go on forever are not attractive to the public. We've learned that already in the last year and a half through plus. We need something to really believe in. And I really thank you for having so many great discussions and trying to find out what that is and give people hope that they can talk about this openly and improve the quality of life for all British Columbians, those on reserve, and have proper discourse together and bring us together and not be divided by all of this tribalism and uh secrecy that we're seeing right now. So thank you.

SPEAKER_00 1:06:47

Warren, how can people follow your work?

SPEAKER_01 1:06:50

Our website is publiclanduse.ca, where you can sign up for a newsletter that we send about every month. We're in mainstream media through lots of op-eds, interviews, uh, radio and TV shows. And if you follow our newsletter, you'll get the clips that we put together and share uh every month.

SPEAKER_00 1:07:08

Well, thank you again for the work that you're doing. I look forward to having you come back on when the uh the next political wildfire on this issue starts because it seems to have no clear end in sight for uh the new things that are going to be coming down the pipeline.

SPEAKER_01 1:07:22

Probably this autumn. I look forward to it, Aaron. Thank you.