RUBENSTEIN: What is Ottawa hiding? Inside the secret Musqueam Agreement, shaking BC land ownership

The federal government and British Columbia’s Musqueam Indian Band (šxʷq̓ʷal̕təl̕tən) signed three agreements on February 20, with BC Premier David Eby in attendance, although he later claimed to know nothing about their contents.It is troubling that the agreements were not only negotiated in secret but also remained hidden even after their signing ceremony. Only a quietly posted news release on the Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) website on February 20, provided one-sentence summaries:šxʷq̓ʷal̕təl̕tən A Rights Recognition 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.xʷməθkʷəy̓əm Stewardship & Marine Management Agreement — Establishes bilateral collaborative working groups so that Musqueam knowledge and stewardship practices will guide shared decision-making in this incremental implementation agreement to protect and manage the waters and resources within Musqueam territory.xʷməθkʷəy̓əm Fisheries Agreement — Supports Musqueam’s and Canada’s shared decision-making role in collaborative fisheries management within Musqueam territory, and provides implementation funding as well as funding for access, vessels, and gear through this incremental implementation agreement.It was not until March 2 that Global News published a copy of the agreement, but without revealing its source.Why all the secrecy?Once Canadians had access to a copy of the Rights Recognition Agreement, they were stunned to learn that it purports to unilaterally recognize Musqueam land title within a huge, densely populated swath of the BC Lower Mainland and adjoining coastal waters. This includes vitally important federally owned lands, such as the Port of Vancouver and Vancouver International Airport. However, for the most part, it consists of land over which the federal government has no jurisdiction — either private property, or BC Crown land owned and administered for the benefit of the residents of BC..The Musqueam first identified this highly developed urban area as their traditional territory in a Band Declaration signed in 1976, but it was never widely made available to the public..A comparison shows that the Rights Recognition Agreement signed by the federal government and the Musqueam on February 20 not only makes specific reference to this 1976 Declaration but also defines Musqueam traditional territory in identical language:“B. In its 1976 Declaration, Musqueam describes sxwtala:wmaxw 7a ‘A. xwma8kwayam (Musqueam’s native/ancestral place), as the lands, lakes and streams defined and included by a line commencing at Harvey Creek in the Howe Sound and proceeding Eastward to the height of land and continuing on the height of land around the entire watershed draining into English Bay, Burrard Inlet and Indian Arm; South along the height of land between Coquitlam River and Brunette River to the Fraser River, across to the South of left bank of the main stream and the South Arm to the sea, including all those intervening lands, islands and waters back along the sea shore to Harvey Creek, and the sea, its reefs, flats, tidal lands and islands adjacent to the above described land and out to the centre of the Straight of Georgia.”There can thus be no doubt that in the Rights Recognition Agreement, the federal government purports to recognize Musqueam Aboriginal Title within the huge swath of the BC Lower Mainland, including Metro Vancouver, whose boundaries are delineated in the 1976 Musqueam Declaration. It should also be noted that the BC government does not appear to differ from the Musqueam and federal government’s delineation of the boundaries of this vast area. A map produced by the BC Treaty Commission depicts the same boundaries, as shown in the following map..Unbeknownst to the Canadian public, the federal government has taken seriously for the past decade the Musqueam claim to this ‘traditional territory,’ despite the fact that it consists almost entirely of private property and BC Crown land over which the federal government has no jurisdiction, and even though other Indian Bands such as the Squamish Band also lay claim to large portions of it.When it comes to Aboriginal negotiations, secrecy on the part of both the federal and BC governments has become the norm, preventing important facts from reaching the public. In this case, the decade-long secrecy surrounding the federal government's and the Musqueam's negotiations prevented an important fact from coming to light: the federal government has no jurisdiction over BC Crown lands or privately owned lands in BC..Aboriginal law expert Thomas Isaac directly raised the issue of the federal government’s lack of jurisdiction in an interview on March 5.“Look, unfortunately, there have been many times when we see some secret agreements done, but on the order of magnitude of like the Haida Agreement last year for all the Queen Charlotte Islands, now this agreement, it’s shameful,” said Isaac.“Remember all these lands, save and except for reserve lands; there’d be a few reserve lands included, but these are provincial lands. The federal government has no authority to do that. What did we hear from the Premier today? ‘We’ll give this some thought. We’d like to read the agreement.’ They should be deeply offended that the federal government would dare to do this unilaterally.” Minister of Crown-Indigenous Relations Rebecca Alty avoided the jurisdiction issue when she belatedly issued a statement on March 2. In a posting on X, she asserted that none of the three agreements signed on February 20 affect private property: “The recently signed Musqueam agreements do not affect private property. Suggestions otherwise are false.”If the Minister meant that private property rights are not affected because the federal government has no jurisdiction to negotiate an agreement with the Musqueam that affects private property rights in BC, why did she not explicitly say so?Even more to the point, if the federal government and the Musqueam did not intend the three agreements to affect private property or BC Crown lands, why did they not completely eliminate uncertainty on that point by including a clause in the Rights Recognition Agreement which specifically excluded private property and BC Crown lands? The fact that there is no such clause in the Rights Recognition Agreement speaks volumes, and forces the public to conclude that the federal government intended the public to think that it had legally recognized Musqueam Aboriginal Title over the hundreds of thousands of private fee simple titles in the Metro Vancouver area, as well as over an enormous amount of BC Crown which is owned and administered by the BC government for the benefit of all BC residents.The last time the federal government operated in this way was on Haida Gwaii. With the full approval of the David Eby government in BC, they declared and went to court to enshrine indigenous ownership by the Haida over their entire asserted terrestrial territory: that’s no less than a million hectares of land encompassing the whole of Haida Gwaii, what used to be called the Queen Charlotte Islands, an archipelago off the west coast..According to indigenous land claim experts Geoffrey S. Moyse and Adam Pankratz: “That declaration of Aboriginal title to 100 per cent of a claimed traditional territory is something that never would have occurred had the Haida proceeded with their Aboriginal title court case. In the landmark Tsilhqotʼin Nation v British Columbia case, for example, the Supreme Court granted Aboriginal title to less than five per cent of the band’s traditional territory in central BC.”This is why the Musqueam don’t want to go to court to establish Aboriginal Title as the Cowichan did. They prefer to negotiate the indigenous title with the federal and BC governments in secret and with no accountability to the people of Canada.Indeed, the blueprint for such negotiations, as BC Premier David Eby has stated, is the Haida Agreement in which the BC and federal governments secretly negotiated separate agreements with the Haida for vastly more territory than the Haida could ever have obtained had they filed a lawsuit.During the negotiations, private property owners in Haida Gwaii were ignored. They were merely pawns on a chessboard, and their property rights are still in legal limbo.If negotiation is the Musqueam preference and if the Haida Agreement is the template for negotiations, as Premier David Eby has stated, then private property owners in the Lower Mainland are right to be concerned. Will they, too, be mere pawns on a chessboard during secret negotiations between the federal and provincial governments and the Musqueam, as happened with the Haida Agreement? Will private property owners in Greater Vancouver find that their rights are in legal purgatory at the end of the negotiations, as happened with the Haida Agreement? Will they be sidelined, as is happening right now to private property owners in Richmond, who are being ignored while the BC government and the Cowichan negotiate over the rights to their private property as ordered by the court in the Cowichan decision?.Secret negotiations by federal and provincial governments over Aboriginal Title are not something private property owners can accede to. As Thomas Isaac recently made clear, indigenous title is a right to the land itself.“Aboriginal title is a big deal. I want to be very clear about that. It’s the constitutional right to land. It is not an interest in land. It is the land. The Supreme Court of Canada said it’s no longer Crown land. The Crown doesn’t even retain any of the benefits from the land,” said Isaac.“So, when we talk about Aboriginal title, everyone needs to understand, according to the law today — you know, what people think the law is, or what they might want it to be — what it is today is absolutely very clear. So, look, it’s obviously very beneficial for a First Nation to have Aboriginal title affirmed over a small, discrete parcel, but when you start talking about occupied areas and settled areas of a province, any province, that’s really got to be a non-starter if we’re serious about reconciliation.”In sum, the federal government’s agreement with the Musqueam, which acknowledges rights and title over a large area encompassing most of Metro Vancouver, raises significant concerns about potential costs and the value of private property. The agreement references the notorious UN Declaration on the Rights of Indigenous Peoples (UNDRIP), a non-binding aspirational document strongly supported in full only by countries with no pressing indigenous “land back” grievances, which could lead to financial compensation for the Musqueam based on the value of all properties in the Lower Mainland, estimated at a mind blowing $1.9 trillion, a sum the federal government could never afford to pay to an already very wealthy Indian Band..Naturally, these revelations have sparked fear and distrust among British Columbian landowners, who are concerned about the impact on their property rights and taxation levels, not to mention the secrecy surrounding the agreement’s implementation.It’s long past time for the federal government to be transparent on all these points.Canadians have a right to know what’s going on with the Musqueam agreement.Hymie Rubenstein, editor of REAL Indigenous Report, is a retired professor of anthropology at the University of Manitoba and a senior fellow at the Frontier Centre for Public Policy.A much longer version of this piece first appeared in my newsletter, REAL Indigenous Report. Written by Nina Green, it was revised for republication here with her permission.

RUBENSTEIN: What is Ottawa hiding? Inside the secret Musqueam Agreement, shaking BC land ownership

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