Elizabeth May, Saanich—Gulf Islands
“The court decision about Cowichan land does not threaten private property rights. It is about one specific piece of land that was unfairly taken from the Cowichan people long ago. The Prime Minister should not appeal the decision, and we need to stop spreading false fears.”
“Mr. Speaker, I really do want to thank my hon. colleague from Winnipeg Centre, and I am grateful to her for splitting her time with me. In this day’s debate, I do not want to attribute motivations and reasons for why we are doing it or to say which side is right or wrong, but the problem is that it is posing a question as if it is a live issue that needs to be addressed. That is largely due to misunderstandings and misinformation, so let me try to explain, because I am a British Columbia MP. Another British Columbia MP said that the proof of the fact that the court decision has created real problems is that we are getting calls in our constituency office. I can say that, yes, I am getting calls in my constituency office and getting constituents emailing me. I take it as my responsibility to dig into what the court said and share with my constituents and reassure them that there is no threat to their fee simple ownership of their place. There is no threat to ownership of land by settler culture British Columbians at all from the Cowichan decision. I want to go back to what it is about and what the court did. This is a declaration of the British Columbia Supreme Court. By the way, I think the Prime Minister was wrong to stand in this place and commit to appealing, and I think the British Columbia premier should be ashamed of his running away from DRIPA and of his decision to demonize this decision as if it puts anything into a state of confusion at all. I am more upset with the premier of B.C., because he is a lawyer, so he should know better. The Prime Minister is not, and the Leader of the Opposition is not. I dig into these things because I think it is my job. I will never forget one of my favourite professors at law school. He used to thwack a cane across the desk right in front of us, like something out of The Paper Chase on TV, and he would say, “Develop the habit of thoroughness”, so I have dug in. I have learned more about what this is about, and I want to share it with people because I think it will help take away the notion that in any generalized way the Cowichan decision has anything to say about fee simple property rights in Canada. What the court said was that British Columbia, the British Columbia government, has a duty to negotiate in good faith with the Cowichan, now that the facts are clear, “in a manner consistent with the honour of the Crown.” We use the term “honour of the Crown” quite loosely. There is a minister responsible for Crown-indigenous relations. It is not some anachronism that we still talk about the Crown; it is at the essence of indigenous nations’ relationships with the country of Canada. It is something that happened before there was a country of Canada: the Crown, and the Crown’s relationship with nations that were here before we got here. In this case, what happened? It is an interesting story, and I hope other colleagues here will realize how specific this was to a specific historical injustice, not a generalized one. What happened here to the honour of the Crown? The first governor of British Columbia, appointed by the Crown, Governor James Douglas, was a very interesting person and a person of real integrity. I will not digress too much about James Douglas, but he was, interestingly enough, Black, and he married an indigenous woman when he came to B.C. His mother was Black and his father was Scottish. He was our first governor of British Columbia, and he set a moral tone that was fascinating. With eight engineers at his side, not armed ones, he stood down a whole bunch of armed folks coming up from the U.S. I know we sometimes think about this now and hope it never happens, but he stood down a whole bunch of armed folks from the U.S. who, in the mid-1800s, were coming up to B.C. in the gold rush. They were armed to the teeth. They said they wanted to kill Indians and they wanted to get our gold. How the heck he did this, I do not know, but it is a great story. With eight engineers, Sir James Douglas stood them down and said to them, “You’re entering British Empire now. Put your guns over there and queue up over here to buy your licence if you want to go pan for gold on the Fraser River.” This is astonishing. Governor James Douglas also negotiated with the indigenous nations, particularly in the region I am honoured to represent here, the Saanich nation. There were a lot of individual nations that entered into negotiated agreements with the Crown through Sir James Douglas. They are called the Douglas treaties, and they are really fair and largely ignored over the generations. This particular court decision is about one specific village site on Lulu Island that had been occupied for a very long time. By the way, the court case we are talking about is over 800 pages long, and much of it is about this story: What happened? What was the double-cross? Was there a double-cross? To go back, Sir James Douglas, in 1853 and again in 1859, assured the Cowichan people that this particular village site on Lulu Island, called Tl’uqtinus, which had been heavily populated and was an important village site, would always be Cowichan lands. They set it aside in reserve. That is what Sir James Douglas did. He was an honourable man. Unfortunately, a little later in our history, along comes Colonel Richard Moody, who was given the job of land commissioner for the province of B.C. The Cowichan had a specific commitment from the governor, “This is where you can stay. This is reserve land for you. We’re basically taking everything else, but this is reserve land for you”, but then, about 10 years later, along comes Colonel Richard Moody as land commissioner and buys the land for himself as a land speculator. He dishonours the honour of the Crown. As the court described it, he “surreptitiously” purchased the land for himself to make himself rich while violating a commitment of the Crown to the people of the Cowichan nation. Now, time goes on, but the Cowichan people do not forget that this is actually their land. They had a commitment from the Crown, from Sir James Douglas, and the skullduggery of Colonel Richard Moody cannot dishonour the Crown, so the Cowichan never gave up. They launched a court case in 1911, saying, “This is our land.” The chief of the Cowichan, in 1913, travelled to London, England, and met with King Edward VII to say, “This is our land. Can you please repair this injustice that’s been done to us?” Well, as we can see, time marches on, and they are still trying to get a resolution to this. The gold rush of 1858 was, again, what triggered Colonel Richard Moody’s double-cross. As I said, Sir James Douglas stood them down. I find the history of British Columbia fascinating, but this case is not about any kind of generalized discussion of indigenous land title versus fee simple title. Not at all. Not ever. This is about a very specific injustice to a very specific nation over very specific land that was always theirs. That is what the court said. Then the court said that, because the land now is basically Crown land, the Vancouver Fraser Port Authority, and the B.C. government has no legal right to extinguish title, that is the honour of the Crown to these peoples. My friend Adam Olsen, who was once the Green Party member of the B.C. legislature representing me, and who is a member of the Tsartlip First Nation, in response to this Cowichan decision tried to emphasize, “When First Nations win, the rest of society does not lose.” I would like my hon. colleagues in this place to think about how significant it is for us all that what may knit us together, our sovereignty as a nation, is better protected by the honour of the Crown and its relationship with indigenous nations than almost anything else if we are dealing with a U.S. President who thinks we could be the 51st state. Lots of luck. Section 35 of our Constitution says indigenous lands are inherently held and are indigenous title. It is very important, and some of us in this place have gone to law school, like the hon. member for Nanaimo—Ladysmith, so I know she knows this stuff, that we cannot conflate indigenous title with fee simple title. Crown land is in a different kind of category, and in that sense, indigenous title is more akin to that. As my hon. colleague from Winnipeg said, we have the Haida decision, and there is the Delgamuukw decision, but really the Tsilhqot’in decision of the Supreme Court of Canada made it really clear. Fee simple title is held specifically and personally and can be bought and sold. Indigenous title, as the court said in the Tsilhqot’in decision, is collective and intergenerational. To all concerned, let us please not allow people to believe something that is not true. This Cowichan decision does not threaten fee simple land or property rights. Let us wait for the courts to conclude, and let us stay calm.”
Mr. Speaker, I really do want to thank my hon. colleague from Winnipeg Centre, and I am grateful to her for splitting her time with me. In this day’s debate, I do not want to attribute motivations and reasons for why we are doing it or to say which side is right or wrong, but the problem is that it is posing a question as if it is a live issue that needs to be addressed. That is largely due to misunderstandings and misinformation, so let me try to explain, because I am a British Columbia MP. Another British Columbia MP said that the proof of the fact that the court decision has created real problems is that we are getting calls in our constituency office. I can say that, yes, I am getting calls in my constituency office and getting constituents emailing me. I take it as my responsibility to dig into what the court said and share with my constituents and reassure them that there is no threat to their fee simple ownership of their place. There is no threat to ownership of land by settler culture British Columbians at all from the Cowichan decision. I want to go back to what it is about and what the court did. This is a declaration of the British Columbia Supreme Court. By the way, I think the Prime Minister was wrong to stand in this place and commit to appealing, and I think the British Columbia premier should be ashamed of his running away from DRIPA and of his decision to demonize this decision as if it puts anything into a state of confusion at all. I am more upset with the premier of B.C., because he is a lawyer, so he should know better. The Prime Minister is not, and the Leader of the Opposition is not. I dig into these things because I think it is my job. I will never forget one of my favourite professors at law school. He used to thwack a cane across the desk right in front of us, like something out of The Paper Chase on TV, and he would say, “Develop the habit of thoroughness”, so I have dug in. I have learned more about what this is about, and I want to share it with people because I think it will help take away the notion that in any generalized way the Cowichan decision has anything to say about fee simple property rights in Canada. What the court said was that British Columbia, the British Columbia government, has a duty to negotiate in good faith with the Cowichan, now that the facts are clear, “in a manner consistent with the honour of the Crown.” We use the term “honour of the Crown” quite loosely. There is a minister responsible for Crown-indigenous relations. It is not some anachronism that we still talk about the Crown; it is at the essence of indigenous nations’ relationships with the country of Canada. It is something that happened before there was a country of Canada: the Crown, and the Crown’s relationship with nations that were here before we got here. In this case, what happened? It is an interesting story, and I hope other colleagues here will realize how specific this was to a specific historical injustice, not a generalized one. What happened here to the honour of the Crown? The first governor of British Columbia, appointed by the Crown, Governor James Douglas, was a very interesting person and a person of real integrity. I will not digress too much about James Douglas, but he was, interestingly enough, Black, and he married an indigenous woman when he came to B.C. His mother was Black and his father was Scottish. He was our first governor of British Columbia, and he set a moral tone that was fascinating. With eight engineers at his side, not armed ones, he stood down a whole bunch of armed folks coming up from the U.S. I know we sometimes think about this now and hope it never happens, but he stood down a whole bunch of armed folks from the U.S. who, in the mid-1800s, were coming up to B.C. in the gold rush. They were armed to the teeth. They said they wanted to kill Indians and they wanted to get our gold. How the heck he did this, I do not know, but it is a great story. With eight engineers, Sir James Douglas stood them down and said to them, “You’re entering British Empire now. Put your guns over there and queue up over here to buy your licence if you want to go pan for gold on the Fraser River.” This is astonishing. Governor James Douglas also negotiated with the indigenous nations, particularly in the region I am honoured to represent here, the Saanich nation. There were a lot of individual nations that entered into negotiated agreements with the Crown through Sir James Douglas. They are called the Douglas treaties, and they are really fair and largely ignored over the generations. This particular court decision is about one specific village site on Lulu Island that had been occupied for a very long time. By the way, the court case we are talking about is over 800 pages long, and much of it is about this story: What happened? What was the double-cross? Was there a double-cross? To go back, Sir James Douglas, in 1853 and again in 1859, assured the Cowichan people that this particular village site on Lulu Island, called Tl’uqtinus, which had been heavily populated and was an important village site, would always be Cowichan lands. They set it aside in reserve. That is what Sir James Douglas did. He was an honourable man. Unfortunately, a little later in our history, along comes Colonel Richard Moody, who was given the job of land commissioner for the province of B.C. The Cowichan had a specific commitment from the governor, “This is where you can stay. This is reserve land for you. We’re basically taking everything else, but this is reserve land for you”, but then, about 10 years later, along comes Colonel Richard Moody as land commissioner and buys the land for himself as a land speculator. He dishonours the honour of the Crown. As the court described it, he “surreptitiously” purchased the land for himself to make himself rich while violating a commitment of the Crown to the people of the Cowichan nation. Now, time goes on, but the Cowichan people do not forget that this is actually their land. They had a commitment from the Crown, from Sir James Douglas, and the skullduggery of Colonel Richard Moody cannot dishonour the Crown, so the Cowichan never gave up. They launched a court case in 1911, saying, “This is our land.” The chief of the Cowichan, in 1913, travelled to London, England, and met with King Edward VII to say, “This is our land. Can you please repair this injustice that’s been done to us?” Well, as we can see, time marches on, and they are still trying to get a resolution to this. The gold rush of 1858 was, again, what triggered Colonel Richard Moody’s double-cross. As I said, Sir James Douglas stood them down. I find the history of British Columbia fascinating, but this case is not about any kind of generalized discussion of indigenous land title versus fee simple title. Not at all. Not ever. This is about a very specific injustice to a very specific nation over very specific land that was always theirs. That is what the court said. Then the court said that, because the land now is basically Crown land, the Vancouver Fraser Port Authority, and the B.C. government has no legal right to extinguish title, that is the honour of the Crown to these peoples. My friend Adam Olsen, who was once the Green Party member of the B.C. legislature representing me, and who is a member of the Tsartlip First Nation, in response to this Cowichan decision tried to emphasize, “When First Nations win, the rest of society does not lose.” I would like my hon. colleagues in this place to think about how significant it is for us all that what may knit us together, our sovereignty as a nation, is better protected by the honour of the Crown and its relationship with indigenous nations than almost anything else if we are dealing with a U.S. President who thinks we could be the 51st state. Lots of luck. Section 35 of our Constitution says indigenous lands are inherently held and are indigenous title. It is very important, and some of us in this place have gone to law school, like the hon. member for Nanaimo—Ladysmith, so I know she knows this stuff, that we cannot conflate indigenous title with fee simple title. Crown land is in a different kind of category, and in that sense, indigenous title is more akin to that. As my hon. colleague from Winnipeg said, we have the Haida decision, and there is the Delgamuukw decision, but really the Tsilhqot’in decision of the Supreme Court of Canada made it really clear. Fee simple title is held specifically and personally and can be bought and sold. Indigenous title, as the court said in the Tsilhqot’in decision, is collective and intergenerational. To all concerned, let us please not allow people to believe something that is not true. This Cowichan decision does not threaten fee simple land or property rights. Let us wait for the courts to conclude, and let us stay calm.