A group of former British Columbia attorneys general have penned a letter arguing that modern treaties are "among the strongest and most practical forms of reconciliation."
The move comes as uncertainty over land claims and court cases continues to dominate political discourse.
"Some of us had the privilege of signing modern treaties on behalf of British Columbia," they wrote. "All of us remain committed to the path they represent: negotiated, durable agreements that affirm Indigenous rights, strengthen the rule of law, and replace conflict and uncertainty with clarity and partnership."
The coalition argued that modern treaties are "good for reconciliation — and good for British Columbia" because they "establish clear rights and responsibilities for Indigenous Nations, public governments, communities, businesses, lenders, and investors."
"That certainty is essential to building trust, advancing responsible development, and creating the conditions for long-term prosperity for us all," the group added.
Much has been said about the impact of Aboriginal title on private property, and the truth has gotten lost in the noise. The group of former attorneys general claimed that modern treaties "respect private property and do not put ordinary homeowners' or businesses' private property at risk."
"Modern treaties provide a negotiated framework for recognizing Indigenous rights while preserving the security of private property," they wrote. "They do not displace ordinary homeowners or businesses from their fee-simple lands. Rather than leaving difficult questions about Indigenous rights and private property to uncertain and costly litigation, modern treaties allow the parties to define how those interests will be respected within the same broader territory."
But not everyone agrees.
In a recent entry in McMillan's Indigenous Law Bulletin, a coalition of lawyers argued that while earlier treaties did provide that certainty, modern treaties — such as those signed with the Kitselas, Kitsumkalum, and K’omoks First Nations — have some notable differences.
Their primary concern was that the preambles of modern treaties "state that the parties enter into the respective agreements with the common objective of advancing the implementation of the United Nations Declaration on the Rights of Indigenous Peoples," and that "substantive provisions" of the agreements "provide that UNDRIP is an 'authoritative source' for interpretation and will inform the parties in their implementation of the respective New Treaty Agreements."
They also pointed out that while earlier treaties laid out "exhaustive” Aboriginal rights and the limitations on those rights as set out in the agreement, modern treaties include provisions allowing additional rights to be exercised, potentially through binding arbitration.
"Private landowners, industrial users of public land, and private owners who use public land," the group warned, "are not shielded from such claims."
The authors of the piece went on to note that the inclusion of UNDRIP goals in modern treaties could give courts the opportunity to re-open earlier treaties "on the basis that their 'certainty' model is contrary to DRIPA."
"These are complex questions that are subject to various contingencies and which may ultimately require litigation to address," they wrote. "But what is clear is that any suggestion BC will achieve certainty and avoid DRIPA-based concerns through greater use of treaties is an oversimplification and perhaps even illusory."
Signatories of the letter included former attorneys general Brian Smith, Colin Gabelmann, Graeme Bowbrick, Geoff Plant, Ujjal Dosanjh, Wally Oppal, Andrew Petter, Mike de Jong, Shirley Bond, Suzanne Anton, and Murray Rankin.
The McMillan article was written by Joan Young, Radha Curpen, Robin Junger, Sasa Jarvis, Tom Theodorakis, David Burchart, and Cory Kent.
