Nuanced. - 246. Bruce McIvor: Private Property VS. Aboriginal Title? Aboriginal Lawyer Explains

Episode Date: June 22, 2026

Aboriginal lawyer Bruce McIvor of First Peoples Law joins Aaron Pete to discuss Aboriginal title, DRIPA, the Cowichan decision, private property concerns, pipelines, Kamloops, constitutional democracy, and why he believes reconciliation is failing in Canada.Send us Fan MailSupport the shownuancedmedia.ca

You've written about how reconciliation is failing indigenous people. In your view, what is the biggest thing Canada is getting wrong about reconciliation? Well, I think they try to pursue reconciliation at this, at least saying they are, well, at the same time, continuing with a denial agenda. The Cowichin decision has raised serious concerns among private property owners. Do you think those fears are legitimate? I think I've been blown out. all out of proportion.

British Columbians are largely supportive of seeing a new pipeline come through, and coastal first nations are not. What's causing that increased hostility of racism? From my perspective, it's largely been a misrepresentation of court decisions. When do you think reconciliation comes to an end? Bruce, thank you so much for joining us today. It's a privilege to have you back on the show. Would you mind briefly reintroducing yourself for people who might not be acquainted?

Sure. Well, thanks very much for inviting me back on. I'm Bruce McIrower, I'm the senior partner at First People's Law, and I'm originally from Madatoga. My family is one of the Métis families from the Red River. How did you get started in this work? could just give us some background. Oh, well, I never intended to be a lawyer.

I'm a lawyer by accident. I was actually finishing my PhD in history. And then like a lot of people, the scholarship and fellowship money ran out. So I had to find some work. I'll take my bills. And just by good luck, I ended up doing. starting to do some work with some great lawyers doing Aboriginal law in Vancouver and started working with them. Finally came around to the fact that kind of enjoyed the law more than academics.

I joke with people. It says something about university professors that I prefer to hang out with lawyers. So I went back and did my law degree and now here I am. You've written about how reconciliation is failing indigenous people. In your view, what is the biggest thing Canada is getting wrong about reconciliation? Well, I think they try to pursue reconciliation at this, at least saying they are, Well, at the same time, continuing with the denial agenda, so that applies the same for the federal government,

for provincial governments across the country, as they continue a policy of denying rights, it's very rare that you get to a situation where rights are recognized, and then there's a commitment to implement, amend those rights. So I think the biggest failure around reconciliation is the idea that government can say that, yet continue to deny rights. I'm curious. I'm sure you've heard about what's going on right now with DRIPA. Premier David Eby's government recently went from pushing DRIPA-related legislation and amendments to suggesting it would be a confidence vote, to saying it would no

longer be a confidence vote and then delaying this whole amendment until the fall. What did that whole episode mean to you? What were your reflections on the outcomes? Well, there's a couple of things with that. One, it just shows that you can't achieve so-called reconciliation if governments don't follow through with the promises they make to indigenous people. If there's no faith in the promises that government makes, we're never going to get to a better place. So that's a fundamental problem with the changes in petition that the BC government has expressed since the court decision around DRIPA. The second point is that this is a long history of colonizer governments doing this.

their willingness to manipulate their own laws if they don't get the outcome they want. They'll go back to if they're unsuccessful in court, then they'll go and change the laws to suit themselves. So this is a sorry example of a government saying that it's going to do exactly that. I had Thomas Isaac, who you may know, come on. And one of his chief frustrations was around this term must means must. And the premier was asked about what must means must. Like, why was that such a surprise to him as a legally trained individual himself? And the read that I got from Thomas Isaac, and I don't want to put words in his mouth, is just a surprise at how poorly handled this whole process of bringing in DRIPA, amending it, all of these discussions have been. And I'm wondering, when you look at this government and how it's operated, do you agree with that type of analysis,

or do you think they're striving upwards, trying to achieve something positive, and perhaps falling short? Well, they had been up until this change of course in the last few months, subsequent to the decision. It made me think a bit. You'll remember back when former Premier Gordon Campbell was in opposition and was opposing recognition of indigenous rights. And then he became Premier and he had a kind of come to Jesus moment where he flipped. And he became, in comparison, an advocate for the recognition of indigenous rights.

rights. What we've seen with our current premier is the opposite, come a flip in the opposite direction, someone who has a very strong proponent for indigenous rights. Given what the circumstances are internally, I'm not sure, maybe because they have such a slim majority, but then reacting in a really unreliable and a regrettable way to the court decision. And doing exactly the opposite of what I think he should be doing instead of committing, confirming the role of the courts, to confirm, to clarify what the laws mean. Instead of doing that, he came out and sounded more like Doug Ford,

undermining people's confidence in the courts. I guess one area I'd like your feedback on, because it's kind of my interpretation of what's taken place. I think it's true to your point that the Premier wanted to reassure British Columbians after the Gittsala decision around mineral rights, that this is meant to work for everybody. So he rushed to try and take action and reduce the temperature in the room. as you know, the Cowichin decision, which we'll talk about it in a little bit, had tensions rise between First Nations and everyday British Columbians. And so he wanted to bring the temperature down by promising that he was going to address this and that it would be a confidence vote so that

everybody would be reassured that he's willing to address it. And then when he spoke to First Nations leaders, it sounded like internally within his caucus and First Nations leaders were putting a lot of pressure on him not to do that. And so he started to step back quite a bit. Now, the piece that I, I'm not in total alignment with BCAFN or UBCIC, because I think the error that I see here is that that was an act of goodwill to British Columbians and everyday Canadians that were scared. It wasn't going to undermine all of DRIPA. I'm aware of some of the changes they were proposing. It wasn't going to be a wholesale change. It was going to be some restrictions on future legislation so that the court wouldn't interpret legislation that hadn't been reviewed or modified to fall under DRIPA.

And so that was an act of good faith. And then by stepping back from that, I see kind of two consequences. One, British Columbians feel shortchanged by that decision. And then two, you have the BC Conservatives waiting outside ready to repeal the whole thing. And so I don't see from a strategic perspective how walking away from the amendments was good for British Columbians. or good if you're trying to stay in government and stay in power, because you've just kind of given a little bit more fire to the conservatives in their position. And I'm wondering, what's your feedback on my analysis? Well, I think that this goes back to your first question about what's the problem with reconciliation.

Because what this demonstrates is that from day one with DRIPA, the government was saying this is an aspirational. document. This is an aspirational commitment. We'll get around to changing the laws, making them align with DRIPA down the road sometime. And that itself is a problem because if it's always aspirational, it's never happening. It's always in the future. And the second point is that I think a lot of lawyers from day one read the legislation and said, that's not what this legislation says. This says that, no, you have a commitment now. You must do it now. So the idea that this came about as a surprise for the provincial government, it's kind of hard to swallow.

They may have thought this is aspirational, but they have a lot of good, lawyers there. They must have known that's what the commitment was. And the expectation from First Nations was that they would follow through. That's what they should have been doing from day one. They shouldn't have been trying to pass off this idea that it's simply aspirational. Do you like the DRIPA legislation? Do you support? I don't know about like or not. My view on Drupagin, generally, is that it's not a panacea. It's got a role to play. It sets out minimum standards, but it's not a lack of legal obligations.

That's the problem in BC and across the country. It's the lack of political will to live up to those obligations. That's what we're short of. When it comes to free prior informed consent, the legal standard and requirement for consent isn't dependent on DREPA. That's been part of Canadian law going back to at least the Royal Proclamation of 1763. Consent is not something we need to rely on DREPA for. It's part of Canadian law.

in certain situations, then the Supreme Court has confirmed that more than once. So what we need is we need provincial and federal governments to live up to those responsibilities. When the court clarifies the law, which is what the role of the court is, don't call the court into question. Instead, say yes, okay, thank you. Now, we will do a are best to ensure that these commitments are fulfilled. What are your thoughts on a lot of British Columbians are now coming forward, very frustrated about these processes, feeling like their voices aren't being as heard as First Nations are, in regards to particularly, I think this opportunities around economic development and a potential

new pipeline that's being discussed by Alberta, British Columbians are largely supportive of seeing a new pipeline come through. And coastal First Nations are not. And I'm wondering, how do we make sure that we don't go down this path where we put First Nations and Canadians more and more at odds with each other, which is what it's feeling like to me in the political temperature, is that we're more on different pages now than we were 10 years ago. And I'm wondering, how do you reflect on that?

And how do we balance the consent of First Nations with the interests of all British Columbians? I think there's responsibility to be shared. There's responsibility in the hands of politicians to follow through on commitments that are made. They're responsible for not misrepresenting what the court says and what the impact of court decision are. There's responsibility, I think, on behalf of non-indigenous, Canadians, to frankly deal with these unsettled questions. The idea that you can just get on with things and ignore history and ignore the law,

ignore fundamental constitutional principles, I don't think that's the way to resolve it. Personally, I'm always amazed by the willingness of so many first, nations to try to find a workable way forward. The patience that they've shown for such a long time. I don't think there's a lack of willingness on behalf of most first nations to find a workable, respectful way forward. I think what we need is we need non-indigenous Canadians to hold politicians to account, hold them to account, and then when that happens, I think we'll gradually get to a better

place. The Cowichin decision has raised serious concerns among private property owners. Do you think those fears are legitimate? The effect of the Cowichin decision, I think, has been blown out all out of proportion. And I think a lot of this is because it's been tied. up with politics, not with reality of what the effect is. And importantly, not the fundamental legal principles that it confirms. So Cowichin is important. It's not a surprise, I think, for a lot of people who work in this field of law,

the idea that the court would come out and say that granting fee simple private property interest does not on its own extinguish Aboriginal title, I think that's not a surprise. That's where most people practicing in this field thought when the question was finally asked of the court, what the response would be. where it's gotten off track is that there have been so many people misrepresenting the decision.

The idea that fee simple interest can coexist with underlying Aboriginal title to the same land, I think legally that sounds. What we need now is a way to resolve that. And as the courts have said for a long, long time, this is up to the parties. This is up to Crown, provincial, federal, to work with First Nations in a respectful way to resolve how those things work together. It's not up to the courts to answer all the ways forward. The role of the courts is to clarify the law. Would you agree that because of the uncertainty this has created,

that that uncertainty may lead to a loss in property value within the claimed lens? I'm not saying it. Not a property appraiser. I think more importantly, non-indigenous people need to recognize that this issue is finally coming home to Bruce. Is it just to say that, well, sorry, the government has been denying college and title for over 150 years,

and the fact that they've kept denying it itself means that the title no longer exists, I think most Canadians would recognize. That is a fundamental. injustice. I think the best clarification, the best description I heard around college and didn't come from a lawyer,

didn't come from a politician. It came from my friend Frank at my local cafe who was asking me about it one day. And he turned to me and he said, Bruce, if someone steals my car and drugs away. It's still my car, right? And there's someone who could just see the fundamental

justice of recognizing, even though it's been denied for all this time, that Aboriginal title can continue to exist to the same land. Now let's get on with finding a reasonable fair way forward. I guess, what I'm hearing, and I'm just playing devil's advocate, because these are the arguments I hear, is that imagine it wasn't your car that was stolen. Imagine it was your great, great, great, great, grandparents' car that was stolen. What are you owed in response to that circumstance? Yeah. So this is this misconception that because it's not personally something that you started, therefore you have no responsibility.

I reject that idea. Yes, we have a responsibility because we're part of this country. We're part of upholding the values that the country based on and the fact that those people continue to benefit from that wrong. They continue to benefit from it. It's not that someone stole a benefit. money a hundred years ago and ran away with it. No, you're on that plan. So much of the value is tied up with that property, the same property, and people are benefiting from it now. So there's a

responsibility both historically and personally to find a way forward. Now, it's not on the individuals, I think that's important, but it's on government. Government needs to follow through with resolving this now in a fair and reasonable way. But those individuals are taxpayers and any solution that the government comes to is ultimately funded by and paid for by the individuals of our province. And so, yes. Well, you're saying that you're saying that there's For all, saying there is an individual. Benefitted the huge wealth

that has been extracted from First Nation Aboriginal title land for all these years when you consider the fact that now this needs to be dealt with. Yes, it needs to be dealt with.

But that's because governments, year after year, government after government with the support of non-indigenous people kept punting it down the road. That doesn't make it right. That it needs to be resolved. I would hope that most Canadians recognize that their country stands for justice, It stands for recognition of Aboriginal rights, and that sweeping it under the rug now, because there's a price to pay, is not a fair, reasonable, and just way forward.

Now, you might imagine this isn't my preference, but when I look at where we are right now, I can see that the pendulum was at one point in the early, 2000s. Canadians weren't very interested in reconciliation. It wasn't a hot topic. Truth and Reconciliation Commission comes out in 2015. Justin Trudeau gets elected Prime Minister. There's a huge appetite over the last 10 years under John Horgan and Prime Minister Justin Trudeau to have the reconciliation conversation to try and address this. I'm seeing that pendulum swing back now again in the other direction where we don't hear Prime Minister Mark Carney focus a lot on engaging with local First Nations, particularly around this pipeline. One of his ministers was supposed to meet with coastal First Nations and said he'd do it over Zoom or something like that.

You can see that the investment isn't there the way that it was. As you've said, over the past six months since the Couchin decision, or sorry, since the Couchin decision, there's been a lower interest from the provincial government to want to address this. They're also running massive deficits, so they don't have a lot of money to try and reconcile financially with First Nation communities. So I'm seeing that pendulum swing back. And you mentioned earlier that you think Canadians understand this and can get on board with that. I'm, I guess, a little bit more skeptical.

And I'm seeing that pendulum swing back. And I can see people already saying, we tried. It didn't work. Let's move on. And so I'm just wondering, how do you see this playing out over the next five to 10 years? Well, I don't have a crystal ball. But this goes back again to your first. Question. What is the problem with reconciliation? Well, the version of reconciliation, we've seen too much.

Ah is aspirational reconciliation. It's that maybe we'll do something in the future. Maybe we'll do something that we don't think is too painful. It's not hard for us to do. It's more rhetoric. than reality. And so the idea that, well, you know what, that's not acceptable. That's not acceptable at law. And for some not indigenous people to say, no, well, then it's the indigenous people's fault because they're demanding too much.

That just shows a lack of commitment to the hard work of reconciliation. I've got to, these shirts made up for my firm and on the back, they say if reconciliation is making you feel good, you're doing it wrong. Because there's been too much of that feel good type of reconciliation. This is hard work. This is going to make people uncomfortable. When they're feeling uncomfortable, I think it's more likely that they're actually doing that hard work and will be getting to a better ways. As far as what the cost might be, I think one of the things we all learned from the COVID

pandemic was that it's not a lack of resources. It's a lack of political will. Because when a lot of non-Indigenous people were in threat of getting sick and getting sick, there was no end to the money available. The federal government had unlimited resources. So I don't really accept the idea that, sorry, we love to do something for you, but suddenly we don't have money, that's not a reasonable response. The problem is a lack of political will to do the hard work that needs to be done. What do you think that ultimately means in the final analysis? Governments are supposed to represent the people. The people seem less eager to address this, they're supposed to derive their mandates from those individuals as citizens.

How do we address this if this continues? Yeah, I've heard a version of that kind of argument coming out of some people in Alberta around the proposed referendum. It's a democracy, majority rules. That's not how Canada's legal system works. We have a constitutional democracy. That's important to keep in mind. It's not just majority rules. There are fundamental constitutional principles that this country is based on. That includes respect for minority rights.

That includes respect for Aboriginal title and rights. And the hard work of reconciliation that that requires. So I don't accept the idea that sorry, majority rules, we're not going to do this. It's that way of thinking that's been going on in BC since the 1850s. That's brought us to this situation now. We're in agreement on that. The Globe and Mail recently argued that there is no reconciliation without truth, noting that there has been no public confirmation of human remains at Camloops,

while also recognizing the real harms and deaths that connected to residential schools. How do you think Canadians should talk honestly about Camloops 215 without falling into denialism or overstating what is known? Yeah. I can't speak specifically to the facts of the residential school at Camloops. I've not been involved in that. But I'm all for truth-telling, but the truth-telling has to be on both sides. And so we were just having a conversation around Chowich and Aboriginal Title.

That's where truth-telling comes up. Here we have the court saying, Aboriginal title continued to exist. That's a hard truth. that it seems like a lot of non-Indigenous people do not want to accept. So if they're saying, hey, they're all for truth telling, let's start there. Thank you for sharing that. Do you think that we're in a place where the public is also moving away from terms like

settler, colonizer, in terms like that? Do you think that that's going to stay in the zeitgeist of our culture, or do you think that that's fading away? I don't know. I can't say where that's going. I think having a conversation about those terms can be really useful, not just because you're trying to decide which word to use, but in thinking about the language, it leads you into a more fundamental conversation. And I think that's really important. When we talk about settlers, for example,

I can see a role for that, but then it also gets a lot of people thinking, wait a minute, does that mean this land was not settled before non-indigenous people abribed? What does this mean to talk about settlers? I think that's a useful convertization about, you know, colonization, that's an important term to be thinking about.

I know our former Prime Minister Harper infamously once said something along the lines of Canada has no history of colonization. Well, that's exactly the kind of conversation. It should trigger when we, use those terms. Wait a minute. Is that true? Let's look at that.

So I can't predict what terms are going to be used in five or ten years, but I do think it's very important to be thoughtful about the language we use. And when it helps us to have a meaningful conversation, of conversation, I think that can get us to a better place. I'd be curious as to your analysis. We've kind of talked about it a little bit around First Nations, and I agree with you, are largely willing to try and meet Canada and British Columbians where they're at. Reassure, like Chief Wayne Sparrow did say,

we're not coming after your private property rights with our Musqueam agreement. Cowichin saying the same thing about the Cowichin decision, that they're not interested in coming after private property rights. But I do see, as we continue to go down this path, a growing division, more racism towards First Nations and indigenous people, more negativity towards the indigenous file, more polarization. It felt like from 2015 to 2021, there was a real embrace by a lot of people I know that felt like this was a necessary and important conversation. And the other piece I'll just layer on to that is I also believe in 2015 we had balanced budget. and when we're dealing with large deficits and people can't afford food in their fridge,

that that changes where people are able to have certain conversations around the environment, around social issues, and on reconciliation. And so it feels like we're in a different place than we were in 2015. But I'm just wondering, how do you digest? Like if we continue to have these tough conversations and go down this path, and we see more and more increases in racism, at what point do you think we need to change tact or,

or reconsider how we're operating, where we're creating more polarization. I always thought personally reconciliation should bring the two back together, so we reconcile. But if that results in British Columbians having a lot more hostility towards indigenous people, which is what I see a lot, how is this actually bringing the two parties to a conclusion where we're back on the same page? Yeah, that's a good question, but it raises the point about what's causing that increased possibility or racism. From my perspective, it's largely been a misrepresentation of court decisions, both with the Getsalode decision, but particularly with Cowichin. There's been a lot of misrepresentation

about what that decision means. And that's fed into, and I think, led to this increase in hostility and racism against indigenous people. And I think that's what's regrettable. It's not what the court said. It's not the fact that the Cowichin said, where we'll be part of this Canadian court system, and so we'll use it, we'll go to court. That's not what the problem is.

It's not even the precise outcome of collagen at lock. It's what people have made of it. I think that's where the concern is punits. You talked about the global male. Gary Mason had, from my perspective, a extremely irresponsible opinion piece on this a month or two ago. we've seen a lot of politicians misrepresent Cowichent. That's what stoked the racism

and the potential biplans. I think these people need to recognize they have a responsibility. They have a responsibility not to misrepresent the legal outcome of court decisions. And that makes me very concerned when I see it, see it happening. Would you want to be a visibly indigenous person walking around Richmond? No. I think it's concerning because there's increased level threats of violence against

indigenous people and particularly against indigenous women and girls. We all know that they unfortunately often bear the brunt of this type of violence and ratism. There's a responsibility for those who can to speak out and speak the truth. When do you think reconciliation comes to an end? Oh, I can't predict that, but I think the way we can get there, we can have a meaningful conversation is to say that we will engage in a truthful, respectful way, regardless of where it takes us. The idea that certain things are off limits that we're not going to have a conversation about private property,

we're not going to get to reconciliation. if we can't have those difficult con of con of con conversations. Do you have any metrics in mind as to how you would see reconciliation potentially resolve in? Well, I think one of the ways that it gets to a better place is that we move away from the policies of denial. We also move away from the idea that certainty means that indigenous people give up their rights in exchange for a bundle of rights as part of a so-called modern treaty. I don't think that's the way that we're going to get to true reconciliation. I think what we need to do is we need to confirm underlying principles that all sides hold in common, confirm those principles, and then ensure that there are processes in place that lead to a meaningful relationship.

Too much of what's been going on from the government side, I think, is based. based on denial of rights and that certainty means the extinguishment of Aboriginal title rights. I think we need to move away from that mindset and instead focus on a relationship that recognizes and implement the existence of those rights. I know you've written a few books. Would you mind sharing with people what those books are and how they can follow your work.

Sure, thanks. Well, my first book a few years ago was stand off. Can't remember the long, I don't know, something like why reconciliation fails and how to fix it. So that first book is a series of short essays that speak to a lot of these questions. My more recent book was last year Indigenous rights in one minute. What do you need to know to talk? Reconciliation.

That book came out of workshops that I've done all across the country for both indigenous and non-Indigenous groups talking about Aboriginal rights. And I kept getting asked the same question. all the time. So I thought I'd put my answers to these very frequently asked questions into one book. So that book consists of question and then a short answer from me that takes about a minute to read. So that's, that that book particularly has been very so. successful in the last year. And I think that doesn't speak to perhaps the quality of my writing as much as much as the real

legitimate interest that indigenous and non-Indigenous people have to get to a better conversation about reconciliation. My firm First People's Law were very active on social media, and we've got an email list of about 20,000 people that subscribe to our weekly newsletters. So I encourage people to go to our website and sign up. Thank you. Fantastic. Thank you, Bruce, for being willing to join.

join us today. I am trying to find the path forward that brings as many people along as possible and that makes sure that we honor history, but also find a path forward where we can all be proud of our province and proud of how we operate. And I appreciate you for bringing those enlightening views to us today. Thank you very much.