Are Vancouver property rights really at risk? Law professor raises questions after federal government-First Nation deal in B.C.

On Friday, February 20, the Musqueam Indian Band in B.C. signed agreements with the Government of Canada recognizing the band’s Aboriginal rights within its traditional lands that are now a large part of the City of Vancouver, West Vancouver, Burnaby, Richmond, and part of Delta, according to the Musqueam’s claims. The initial press release from the federal government revealed that the main agreement “Recognizes that Musqueam has Aboriginal rights including title within their traditional territory and establishes a framework for incremental implementation of rights and nation-to-nation relations with Canada.” The media only became aware of the agreements this past weekend. Immediately, commentators on social media speculated that millions of private property owners’ claims to their land could be in jeopardy. They cited a B.C. Supreme Court ruling last summer that recognized Cowichan Tribes hold Aboriginal title to its traditional lands by the Fraser River, 5.7 square kilometres which now makes up part of Richmond, including residential and commercial areas. It was the first time a Canadian court granted Indigenous title over urban land and is currently being appealed at the Court of Appeal for British Columbia by the province of British Columbia, the City of Richmond, the Musqueam, and Tsawwassen First Nation. Confusion about the agreements was further fueled by the fact the federal government, as of today, has still not publicly released the agreements, because, as described by spokespeople for Crown-Indigenous Relations Canada, they still needed to be translated into both official languages. However, a government official did provide a copy to The Hub of the main agreement, after repeated requests, that can be read below. “The Musqueam Agreements do not affect privately owned land,” a spokesperson for Crown-Indigenous Relations Canada told The Hub. “The Incremental Recognition Agreement provides general recognition that Musqueam has Aboriginal rights and title within their Territory and establishes a framework for ongoing discussions and future negotiations to define how and where those rights and title could apply.” Similar to the Cowichan Tribes, Musqueam Chief Wayne Sparrow, who represents a community of some 1,500 people, has stated his band is not looking to reclaim B.C.ers’ private property. “Musqueam is not coming for anyone’s private property. Our approach to traditional unceded territory is one of partnership and relationship with our neighbours, not trying to take away our neighbours’ private property.” Unlike the Cowichan court decision, which actually gives the Cowichan Tribes’ Aboriginal title rights above fee simple (private property rights of owners of land in Canada), the latest agreements, mainly outlined in “A Rights Recognition Agreement” (the other two agreements pertain to fisheries and marine management), between the federal government and the Musqueam do not do the same. Rather, these are preliminary agreements with further negotiations to come. The Hub’s senior correspondent, Graeme Gordon, spoke to Dwight Newman, a professor of law at the University of Saskatchewan who specializes in Indigenous land claims, to better understand the main new controversial agreement between the Government of Canada and the Musqueam. Graeme Gordon: This main agreement does not constitute a treaty or land claims agreement within the meaning of section 25 or 35 of the Constitution (Indigenous rights). How should we understand this agreement’s constitutional status if it simultaneously recognizes section 35 rights, but is not itself a section 35 treaty? Dwight Newman: Well, it’s an agreement under which, for certain purposes, the federal government is recognizing those rights, although there’s also a clause where they say that doesn’t restrict their ability to make arguments about them for other purposes. So there’s a clause trying to say they could still litigate based on a different position, if there were a land claim in the courts. But in essence, it’s just an agreement…and it doesn’t become constitutionally entrenched as a treaty would. Graeme Gordon: Musqueam Chief Wayne Sparrow has said that they’re not going to challenge people’s land titles or private property. Does this agreement open the door for them to do that in the future, though? Dwight Newman: It doesn’t close it. It doesn’t specifically open it. It doesn’t say anything on that, interestingly enough, and I’d actually think that in some respects, an assumption of the agreement would be that the federal government is assuming that there are Aboriginal title claims on areas of private property, but not necessarily that the Musqueam can claim those lands …There’s no clause dealing with that within the agreement, no clause saying that they will respect fee simple lands [private property ownership] as existed in, say, the Haida agreement. But this is also a more preliminary agreement. Graeme Gordon: There’s been a response on places like X of the general public being afraid that roughly two million people in the Vancouver area may have their private property in jeopardy. There’s no truth to that, then? Dwight Newman: This doesn’t change anything with respect to private property in Vancouver. It doesn’t protect it, but it also doesn’t do anything to that private property. There is an outstanding [separate] Musqueam claim to Aboriginal title over an area that includes a lot of private property in Vancouver, and it overlaps with some other outstanding claims. Nothing has changed in that that’s the same situation that existed before this agreement. Graeme Gordon: So this agreement couldn’t be referenced in a future land claim case, similar to the Cowichan decision? This couldn’t foreshadow something similar happening in Vancouver? Dwight Newman: There are clauses in this agreement that try to keep it out of a future court proceeding, but one can never be sure, and there’s a possibility that something within it gets referenced in a court proceeding, as the Haida agreement was referenced in the Cowichan proceeding. It’s not impossible, but there are clauses in here trying to stop that. But I think it’s a possibility that we would see that someday. Graeme Gordon: Part 5.2 states the agreement does not “create, amend, define, establish, abrogate, or derogate from Musqueam’s Rights and Title.” If rights are not being created or defined, what is the legal effect of this agreement in practice? Dwight Newman: It’s recognizing rights and titles for the purposes of having ongoing negotiations about various issues. The assumption is the rights and title already exist, and this agreement isn’t changing those in any way. Graeme Gordon: So what is the point of signing this agreement then? Dwight Newman: To facilitate further conversations. It’s to commit the federal government to taking steps around some kinds of implementation measures. Some of those are referenced later in the agreement [document], and they’re already doing or working towards things like paying part of the revenues from the Vancouver airport to the Musqueam. So it’s setting a framework for ongoing negotiations about different things that they’re agreeing to talk about, in essence, and it creates dispute resolution mechanisms for disagreements within those discussions. Graeme Gordon: The agreement recognizes Musqueam jurisdiction within its territory while emphasizing cooperative federalism. How might this framework interact with provincial jurisdiction, particularly given that British Columbia is not a signatory? Dwight Newman: The federal government can’t unilaterally change provincial jurisdiction, or shouldn’t be able to, although we’ve seen cases that almost seem to have committed that in some Indigenous contexts. So I guess, to the extent that there are such elements there, the Musqueam are acknowledging that this agreement shouldn’t change federalism, but we’ll see what happens. They may be trying to negotiate with the province as well. Graeme Gordon: Given the repeated emphasis on future discussions and negotiations in this agreement, how enforceable are these commitments? Could a court compel the parties to negotiate in good faith under this framework? Dwight Newman: There are commitments certainly in this agreement about trying to negotiate if things don’t work. They’ve also created a specific dispute resolution process within the agreement to go first to new efforts at negotiations, then to mediation. And if that fails, then they can agree on arbitration, or they can go to the courts. Graeme Gordon: Is this agreement likely to serve as a constitutional template for other First Nations, or is it uniquely tied to the Musqueam case? Dwight Newman: Others will be interested in looking at the agreement and seeing whether it works for their circumstances. It’s obviously been negotiated in the specific context of the Musqueam, but a model like this might be of interest to other First Nations elsewhere. This interview has been edited and condensed for clarity.