Geoffrey Moyse: How UNDRIP is fuelling the 'land back' movement in B.C. - National Post

A pedestrian walks past graffiti on a residential plan change notice stating "Land Back," in Toronto in 2022. Photo by Peter J Thompson/National PostArticle contentMany Canadians are familiar with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), due to media coverage of both the content of the declaration, legislation passed by Ottawa and Victoria, along with court cases declaring it positive Canadian law. What many may not understand is that UNDRIP has been the “holy grail” of the activist Aboriginal movement in Canada, and particularly in British Columbia, for many years.

Once only considered a non legally binding UN document, UNDRIP rose to prominence when the Truth and Reconciliation Commission called on all levels of government to “fully adopt and implement (it) as the framework for reconciliation.”

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Never mind that Canada had already baked Indigenous rights into the Constitution Act, 1982, with the additions of sections 25 and 35. Those rights have been defined over subsequent years not by Canadians or Canadian governments, but by the Supreme Court of Canada.

A primary example arose in 1997, when the court used Sec. 35 — which recognizes and affirms the “existing Aboriginal and treaty rights of the Aboriginal peoples of Canada” — to justify the legal concept of “Aboriginal title.”

We have recently witnessed in the Cowichan decision involving private lands in Richmond, B.C., where Aboriginal title was found by a B.C. court to be a “superior” interest in land to fee simple land. The vehement response to the Cowichan decision by private landowners demonstrates clearly how well that judicial invention is now working out in furthering “reconciliation.”

UNDRIP, of course, is not Sec. 35. It is a far more challenging set of legal assumptions, and arguably far broader in scope and reach than even the concepts that the Supreme Court has defined to be constitutional law under Sec. 35.