Geoffrey S. Moyse, KC, is a retired senior lawyer who served as legal counsel to the Province of B.C., advising six successive governments on Aboriginal law over more than 30 years. He is principal at Moyse Law and an advisor to the Public Land Use Society.
Geoff wrote this piece for ICBA.ca to help clarify two distinct challenges facing British Columbians – and why both demand urgent action.
British Columbians are waking up to a crisis – but many do not yet realize it is a crisis on two fronts, not one.
The first front is the Cowichan Tribes decision of the B.C. Supreme Court, which declared Aboriginal title over private fee-simple lands in Richmond – the first time a Canadian court has done this. The second is the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which has been quietly used by the Eby government to impose a non-binding United Nations resolution on every law in the province.
These two threats are related but legally distinct. Understanding the difference matters – because the solutions are different, and the government would very much like you to confuse them.
The Cowichan Decision: Your Property Rights Are Not as Safe as You Think
The Cowichan Tribes case was not a DRIPA case. It was decided under Section 35 of Canada’s Constitution – the Constitution Act, 1982 – the part of our constitution that recognizes and protects Aboriginal rights and title. Courts have been developing this area of law for decades. What made the Cowichan decision so shocking was not the legal framework it used, but where it went with it.
For the first time, a Canadian court declared that Aboriginal title can exist on top of private property – and that it is the senior right. The court ruled that Land Title Act protections for title to private lands do not apply when Aboriginal title is declared. In plain English: the title you hold to your home, your farm, or your business is no longer the iron-clad guarantee to ownership you thought it was.
Montrose Properties has owned and operated 193 hectares in Richmond for more than 40 years, with $300 million invested. They were never notified of the trial – a trial that lasted 11 years and involved 98 lawyers. When the court decision came down, their lender pulled a $35-million construction loan. A proposed renewable natural gas project evaporated. There is little doubt the value of the land has plummeted.
If that was not enough, residents also became aware after the fact that the B.C. and federal governments had “negotiated” bilateral agreements with another Indigenous group, the Haida, that placed Aboriginal title over the entirety of the Haida Gwaii archipelago – no less than 1 million hectares of land and water – including over private lands. This far-reaching step was taken without any public consultation and with no meaningful input from private landowners.
The Cowichan decision and the Haida deal are objectionable in so many ways – no public notice or engagement, meetings held behind closed doors, and no treaty delivering clarity or finality. Every British Columbian who owns property, pays a mortgage, runs a business on leased land, or works on a construction site should be deeply alarmed. The province needs legislation – immediately – to ensure that private landowners cannot have their property rights altered by a court without being notified and given standing to defend their interests. That is a basic principle of justice, and right now it does not exist in B.C. law.
The Cowichan decision will be appealed but that timeline has not been established.
DRIPA: A Separate Issue Entirely
But while the Cowichan decision exposed a gap in how our existing constitutional law fails protects property, there is something else entirely going on in this province – something that began in 2019 with the passage of DRIPA and has since been used by the government as a smokescreen to impose a complex United Nations policy resolution over every law and regulation in British Columbia.
Here is the basic problem. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is a non-binding UN resolution. It has no legal force in international law. Canada and B.C. aside, no other jurisdiction on the planet has subordinated their entire legal system to it. And yet, through DRIPA and Section 8.1.3 of the Interpretation Act, the B.C. government committed to bringing every provincial law into alignment with this document and directed courts to interpret every statute consistently with it. Ottawa is moving in a similar direction.
Think about what that means for a moment. Every law in British Columbia – the Land Title Act, the Mineral Tenure Act, the Environmental Management Act, the Workers Compensation Act, and hundreds of others governing your life and livelihood – must now be read through the lens of a UN declaration that was never designed to be adopted into any country’s domestic law. It is an extraordinary proposition, and the idea that it could be made to work is frankly frightening and preposterous.
During the debate on DRIPA in the legislature in late 2019 – all 14 minutes of it – government ministers waxed lyrical that DRIPA and UNDRIP created no new rights, had no legal force, did not apply to private land, and did not provide a veto to Aboriginal groups. Those assurances were used to justify passing DRIPA unanimously. Since 2019, it has become clear that every one of those assurances was wrong.
The B.C. Court of Appeal confirmed as much in the Gitxaala decision last December. The court ruled that DRIPA is not symbolic – it is legally enforceable. UNDRIP is now positive law in British Columbia, and the court used it to dismantle the province’s mineral tenure system, creating enormous uncertainty in the mining and exploration sector.
The Eby Government’s Smokescreen
So apparently outraged was the Premier at the Gitxaala outcome that he is now seeking to appeal the decision to the Supreme Court of Canada – a very unwise legal strategy – and to introduce amendments to “court-proof” DRIPA from further judicial interpretation.
But this moral outrage directed at the courts is itself a smokescreen, and here is the part that every British Columbian needs to understand.
Since 2019, the NDP government has been quietly and secretly implementing UNDRIP throughout B.C. as policy. Claimed traditional Indigenous territories are being treated by government as though they are entirely owned by Indigenous people, as Article 26 of UNDRIP contemplates. The government has adopted a de facto requirement for Aboriginal consent for virtually every kind of decision affecting how land is used and resources harnessed.
DRIPA has been used to allow the behind-closed-doors implementation of a complex UN-based policy document that is completely unfit for the Canadian context. What the government wants is to keep this power for itself – to continue implementing UNDRIP selectively, in secret, behind closed doors, with no public input and no meaningful oversight by provincial legislators.
This is not reconciliation. This is the quiet transfer of jurisdiction and economic control over much of British Columbia’s Crown (public) land to select Indigenous groups, driven by ideology rather than law, at the expense of the 5.7 million British Columbians the provincial government is supposed to represent.
Why Amendments Will Not Fix This
The Premier says he will amend DRIPA. But consider what an amendment would actually achieve. If UNDRIP remains embedded in B.C.’s legal framework in any form, it will continue to be interpreted by courts in ways the government claims it never intended – because that is what happens when you legislate vague principles with no guardrails. And if the government succeeds in shutting the courts out of interpreting DRIPA, it merely concentrates the power to implement UNDRIP in the hands of government itself – the same government that has been implementing it secretly and unlawfully since 2019.
Either way, B.C. loses. The only answer is repeal.
Section 35 of the Constitution already recognizes and protects Aboriginal rights and title. The duty to consult and accommodate is well-established Canadian law. The treaty process – grounded in Section 35 – provides a proven mechanism for negotiating balanced, durable outcomes that protect the rights of all parties, including private property owners. None of this requires DRIPA. None of it requires UNDRIP.
Two Fights, One Demand
So let us be clear about what British Columbians face and what must be done.
The Cowichan decision is a Section 35 problem. It shows that under existing constitutional law, our courts can declare Aboriginal title over your land without telling you about it. That demands immediate legislative action to protect private property – notice requirements, standing rights, and ironclad protections for fee-simple ownership.
DRIPA is a separate problem. It is the mechanism by which the Eby government has been quietly rewriting the rules of British Columbia, subordinating every law in the province to an international declaration that was never designed for domestic application. The Gitxaala decision confirmed that the courts will use this tool. Amendments will not contain it. Only repeal will.
Every British Columbian needs to stand up and demand both: the protection of private property rights under our existing constitution, and the repeal of DRIPA to remove UNDRIP from the British Columbia context. No other outcome can be tolerated if this province is to survive as a functioning and prosperous part of Canada. If we are going to achieve real economic reconciliation with First Nations, we need open dialogue and balanced negotiations that lead to modern treaties that will truly unlock the potential of British Columbia for everyone.