WATCH
▶️ Watch this episode on YouTube
***
EPISODE DESCRIPTION
Episode 112: Matt and Taylor are joined by Thomas Isaac. Tom is an Aboriginal Law Lawyer & Partner at Cassels Brock & Blackwell LLP from Vancouver, BC. Tom is a nationally recognized authority in the area of Aboriginal law, advising clients across Canada on Aboriginal legal matters and related environmental assessments, negotiations, and regulatory and constitutional issues affecting major projects. His litigation practice is national in scope and focuses on representing clients in Aboriginal related matters.
Tom has represented industry and government clients before the Supreme Court of Canada, Federal Court of Canada, Ontario Court of Appeal, Ontario Divisional Court, British Columbia Court of Appeal, British Columbia Supreme Court, Northwest Territories Supreme Court, Yukon Supreme Court, National Energy Board, Ontario Energy Board, and the British Columbia Environmental Appeal Board.
Tom is here to discuss: → The Cowichan Tribes v. Canada ruling setting a major province-wide precedent, where else in BC is there assertion of Aboriginal title, and if the case will escalate to Canada's supreme court. → The inherent conflict between Aboriginal and indefeasible title, the difference between reserve land and Aboriginal title, and how this is impacting BC's real estate market. → Why the BC government needs to act, what's at stake for BC's future, and how we can move forward in reconciliation.
Government of BC Indigenous Relations Website: www2.gov.bc.ca/gov/indigenous-relations-reconciliation
Treaty Commissioner Website: www.otc.ca
Crown-Indigenous Relations Website: www.canada.ca/crown-indigenous-relations
Cassels Brock & Blackwell LLP Website: www.cassels.com
Cassels Brock & Blackwell LLP Instagram: @cassels_law
Cassels Brock & Blackwell LLP LinkedIn: @CasselsBrock&BlackwellLLP
Thomas Isaac LinkedIn: @ThomasIsaac
***
OUR SPONSOR
The Kelowna Real Estate Podcast is brought to you by Century 21 Assurance Realty, the gold standard in real estate. To learn more, visit: www.c21kelowna.ca
***
CONNECT WITH THE SHOW
Kelowna Real Estate Podcast: @kelownarealestate
Kelowna Real Estate Podcast YouTube: @KelownaRealEstatePodcast
Kelowna Real Estate Podcast Instagram: @kelownarealestatepodcast
***
CONNECT WITH MATT
Matt Glen's Website: www.mattglen.ca
Matt Glen's Email: matt.glen@century21.ca
Matt Glen's Instagram: @mattglenrealestate
***
CONNECT WITH TAYLOR
Taylor Atkinson's Website: www.venturemortgages.com
Taylor Atkinson's Email: taylor@venturemortgages.com
Taylor Atkinson's Instagram: @VentureMortgages
***
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
Welcome back to the Cologne RealEstate Podcast.
(00:01):
Podcast.
I'm your mortgage broker host,
broker host, Taylor Atkinson.
And I'm your real estate agent
host, Matt Glenn.
Merry Christmas, Taylor.
Merry Christmas.
You guys got down from Big White
this weekend?How was it?
It was awesome.
We stayed at Big White.
Best client.
I actually had that awesome place
listed.
He let us stay at his chalet on
Feathertop in Big White for theweekend.
Stayed there with my family.
It was fantastic.
Such a nice place.
(00:22):
Big white was awesome.
Snow was out.
We watched the fireworks on
Saturday night.
We let him, our two and a half
year old Julian stay up late forthe fireworks.
And like, I don't think fireworkshave ever landed so well with an
audience member.
He just screaming, laughing.
He loved it so much.
It was actually very awesome to
see.
It blows me way up there every
weekend.
they do the family carnival like
(00:43):
they really go after that familycrowd it's awesome i love it man
so we were up there for theweekend we didn't ski we did
everything else back in our likeman we need to get a place up here
like you have one but like it isso nice and like we didn't even do
the thing that you're supposed todo there and it had such a great
weekend so it was awesome it wassuch a good weekend and happy to
kick off the holiday that way yeahwicked how was your weekend you
(01:04):
were doing nothing but good thingsfor the community yeah yeah we had
our fourth annual uh i love it manso we were up there for the
weekend we didn't ski we dideverything else back in our like
man we need to get a place up herelike you have one but like it is
so nice and like we didn't even dothe thing that you're supposed to
do there and it had such a greatweekend so it was awesome it was
such a good weekend and happy tokick off the holiday that way yeah
wicked how was your weekend youwere doing nothing but good things
for the community yeah yeah we hadour fourth annual charity
Christmas event.
We hosted a Barn Owl.
We do a silent auction, which BigWhite actually donated a basket
for us to auction off, which wasawesome.
A lot of local businesses donated.
So yeah, we funders a bunch of
money that way.
We did our shuffleboard
tournament, had a baby deliverybedding pool because one of the
ladies is, well... probably givenbirth today.
Like there's, I think there's sixhours left in the betting pool,
(01:27):
but she's, she's getting inducedtoday.
So yeah, lots of fun ways tofundraise some money for local
families in need.
I haven't tallied it up yet, but
we're probably close to about 5,000 bucks this year, which is
just awesome.
So good for you for doing that.
good for you for doing that.
I want to say community is better
because you're an idiot.
Proud of you.
That's awesome.
(01:47):
Thank you.
Likewise.
Well, I can't take all the credit.
Emily does a ton of the work forit.
Yeah.
You know, so her as well.
Yeah.
We get to just.
do something fun and get back tothe community.
And yeah, lots of good friendsthat get humbled by the process.
So yeah, it's awesome.
Speaking about being humbled and,
you know, trying to navigatesomething, you know, that's
somewhat sensitive and difficult.
Today we hosted Tom Isaac, an
extremely knowledgeable lawyerthat practices Aboriginal law
across the country and has spenthis entire career doing so.
(02:10):
So, you know, I think anyone thathas been following the news in the
last six months has probably seenCowichan Tribe.
court case going on, specificallymostly to Richmond.
So far, but it does seem to bebleeding to the rest of the
province, for sure.
(02:31):
It is definitely going to impact
the rest of the province.
We're very grateful to have Tom on
the show.
He articulates what's going on
incredibly well to kind ofsummarize what has happened and
what is, you know.
Yeah, because we've talked to him
on Tuesday and there's been somenews since, there's been some news
since, right?A lot, yeah.
So we'll just kind of start bysaying this has been... one of the
(02:52):
longest court cases in Canada,we'll just kind of start by saying
this has been... one of thelongest court cases in Canada,
although we're only really hearingabout it from the news side, you
know, recently, but 513 hearingdays over the last five years.
And the court's decision was toaward Aboriginal title, which
essentially they're saying cancoexist with fee simple private
ownership.
And it just by law, it just
cannot.
So Tom kind of dives into that.
And essentially, you know, fromthat decision, we have 18 months
until Everything can be submitted.
(03:13):
It would likely then go to the
Court of Appeal, which is the nextlevel up.
And then from there, if it needsto, it goes to the Supreme Court
of Canada.
And a similar case has happened in
New Brunswick.
And again, last week on, I believe
it was Thursday or Friday, theyactually announced that they would
(03:35):
not be moving forward withawarding Aboriginal title.
So they would be keeping feesimple in place.
place.
So similar court case, just
farther along, kind of a differentresult in New Brunswick than what
we have in BC.
Yeah.
Yeah.
And I think Tom alluded that that
would kind of set the precedent inBC now.
Yeah.
Totally different provinces,
totally different, you know,decision capacity.
(03:55):
So, you know, I don't want to saylike it's going to happen here
because it happened there, but itwas interesting to see that.
In our episode, our episode, Tomwas looking forward to what was
coming out of New Brunswick.
So we have that answer.
have that answer.
Yeah.
Yeah.
You know, one of the quotes from
the judge and I'll just paraphraseit was essentially, you know, if
they awarded Aboriginal title,that would be the.
(04:15):
you know furthest thing fromreconciliation like that is just
not the way forward and you knowwe kind of understand the irony of
this situation and you know wedon't take it lightly like it's
there's just no there's nosolution like how do you provide
reconciliation on on somethinglike this it's just a very
difficult scenario so yeah mattand i are you know we just want to
provide the content on ourplatform and speak with someone
that knows a lot more about thisthan us so that's why we had tom
(04:39):
on the shelf Yeah.
And then Tom also in our show is
calling on Premier Eby to startmaking some statements and helping
out a bit.
And so our show is on Tuesday and
on Wednesday, sounds like he did.
So from Eby says, to face such
dramatic, overreaching andunhelpful court decisions as we
have seen over the past couple ofmonths is deeply troubling.
Premier said, we will fix thisbecause the uncertainty this case
(05:00):
creates is toxic to the work wehave to do with First Nations and
businesses and the economy that wehave to grow.
It is hard to understate thedamage that could be done or has
already been done to the publicsupport for the delicate,
critical, and necessary work wehave to do with First Nations.
So it sounds like David E .B.
is kind of pissed about the
rulings and wants to get themfigured out.
(05:21):
Yeah, and he's also gone on recordagain, this was very recently,
that the province of B .C.
will be offering $150 million to
basically back financialinstitutes so they have the
security to either refinance orcomplete on purchases in the
Richmond area.
No idea how that actually plays
out.
I think it's just a confidence
play, right?It is.
Yeah.
I mean, someone could say that the
damage is kind of done.
Anyone that has ownership in
Richmond right now is probablystruggling for resale or lost
(05:42):
value or just like thatuncertainty is going to cause a
lot of stress.
Even if the banks could refinance,
like let's see appraiser going tothink about this.
Well, yeah, like with the comps,it's just going to affect the
comps in the area, right?Like things are not going to.
likely sell.
Tom Isaac actually points out, you
know, it might be a little bit ofan opportunity.
(06:05):
There was some optimism from himin terms of like, this will get
settled because the alternativeis, is impossible to think about.
Well, and also where does it stop?Is it just like, man?
Yeah.
It could be like a total, like
major shift in real estate Canada.
And this is like we said at the
beginning, this is applicable.
across the province you know we
have i think what tom was sayingis you know some of the the
(06:26):
longest history and most amount offirst nations tribes in canada so
i think we have the most tribesright like there's like 200 yeah
there's over 200 yeah so all ofthem have their treaty claims
we're blessed with the culture butthis is something that needs a lot
of attention and it probablyhasn't been getting a lot of
attention or maybe some of thewrong attention so anyways i think
(06:47):
You know, we'll just let you guyslisten to Tom.
He's fantastic.
He also states that, you know, you
can sign up for his newslettersand blogs that he gets out there.
He's also on the news quite a bit.
So he is.
Yeah.
Yeah.
Super fortunate to have him.
Yeah.
So yeah, give it a listen andhopefully you guys have a great
Christmas and New Year's and we'llsee you guys in 2026.
Yes, sir.
(07:07):
All right.
This episode, like every episodesponsored by Century 21 Insurance
Realty, best brokerage in theOkanagan, not just the Okanagan.
We're talking and surroundingareas, Kamloops, Kootenays, East
Kootenays.
Yeah, we're the brokerage that's
everywhere.
Also, we're growing.
We just kind of merged withexecutive property management.
So we have now have a quite asizable property management
division as well.
So if you are a investor looking
for a property manager to helpwith you with your portfolio, or
if you're a buyer or sellerlooking for an agent, or if you're
(07:31):
an agent looking for a brokerage,Century 21 is a place to call.
You can even just call me and I'lllove talking about it.
So enjoy the show, you guys.
Merry Christmas.
See you in 2026.
Okay.
Tom Isaac, thank you for joiningus on today's show.
We've been patiently kind ofwaiting to have a guest of your
(07:53):
caliber.
Can you just quickly kind of give
us a background of who you are andwhat you're currently practicing?
Sure.
Sure.
So, well, my name's Tom Isaac.
I'm a lawyer.
I've been practicing in Aboriginallaw for... a long time, and I
started my career in the publicservice.
My first job was with thegovernment of Saskatchewan, and
then went up to the NorthwestTerritories and helped set up
Nunavut, and then I was ChiefTreaty Negotiator in British
(08:14):
Columbia.
And for the past 25 years, I have
focused on an Aboriginal lawpractice in every province of
territory of Canada.
work primarily for industry and
public governments.
Not all those mandates are public.
Very proudly have started workingwith some Indigenous governments
on, you know, the right matterswhere we can add value.
And so I've been doing this mywhole career.
(08:35):
I've published a lot in the area.
I appear in a lot of courts across
the country.
We have a large group.
Awesome.
Have you done any work within the,
like, West Cologne?Any of you been there?
Oh, yeah.
Yeah.
I'm very familiar with the Kelownaarea.
I've worked on some infrastructureprojects without getting into the
details.
And yeah, I know that area very
well.
Just bought a condo in Kelowna.
(08:56):
They're trying to help.
And actually very proud to now be
at least a partial resident ofKelowna.
At least my son going to UBC is.
I'd like to hear that.
Yeah, no, it was great.
And I mean, there was a point when
I was in Kelowna, that whole area,probably twice a month for at
least three or four years.
Oh, really?
And, you know, you've got, well,West Bank First Nation, got some
(09:18):
very good memories of working withthem very productively, I might
add, really?on helping build out
infrastructure for all people wholive in the area.
Yeah.
Well, I think, I mean, to jump on
today, because we have so muchinformation to cover, can we just
kind of talk about Cowichan Tribeversus Canada?
what has happened over the lastfew months.
Obviously, this has been quite along court decision, I guess, to
(09:38):
summarize it, but can you justgive us high level what's going on
and we can discuss it from there?Sure.
There is a lot, so I'll try to bevery brief.
The claim was originally filed in2014.
The trial ended in 2023.
So nine years later, 513 days of
trial time.
I believe now they say it's the
longest trial, civil trial inCanadian history, and then almost
(09:59):
two years to get the reasons fromthe court.
So the claim ultimately at the endof the day was for approximately 1
,800 acres of land in the city ofRichmond, a declaration of
Aboriginal title on those lands.
Aboriginal title is a right to the
land.
It's the Aboriginal right to land.
It's not an interest in land.
We'll talk about that maybe a bit
(10:19):
later.
It's a right to the land.
And then at one point, before Iget to the decision, this is
important, I think.
At one point, some folks came
forward and said, hey, shouldn'twe give notice to the other folks
within the 1 ,800 acres thataren't named?
So you have Canada, BC named theairport authority, Thawasson,
Musqueam, and the city ofRichmond.
(10:42):
And the court decided no. We don'tneed to give notice to the other
landowners, and those ownersinclude businesses, some large,
some small, and privatehomeowners.
We don't need to do that becausethe decision won't affect them.
Remember that.
We're going to come back to that
in a few minutes.
So fast forward to August of this
(11:05):
year and the reasons come out.
And the judge found that there is
Aboriginal title on 800.
of the 1 ,800 acres.
So you've got now black linearound 800 acres.
The judge said, I'll give 18months before my decision takes
effect.
And in the meantime, British
Columbia, you need to go negotiatewith the Cowichan to sort out all
these other private landownersthat were part of the litigation,
(11:27):
but whose land now is encumbered,as the judge put it, with
Aboriginal Title.
The judge said that the Land Title
Act on the 800 acres doesn'tapply.
Think about it.
You own land right now.
You rely on the Land Title Act,and specifically it's Section 23
and 25.
(11:47):
The whole Land Title Act's
important, but as a lawyer, I likethe whole act, but it's 23 and 25,
and what those sections basicallysay is, see this, this title?
This means something against thewhole world.
including the government, that youown this land.
What the judge says in thedecision is that on the 800 acres
(12:08):
and off the 800 acres, the LandTitle Act doesn't apply.
But she doesn't invalidate thetitle, interestingly.
So she says, you get to keep yourtitle.
This is how I describe it.
I'm just going to erase everything
on the page.
Because the guts of the title,
(12:30):
like what makes the paper valuableis the Land Title Act.
The judge, interestingly, alsosays that the decision doesn't
affect private parties until theCowichan or another First Nation
goes to obtain the land and takepossession of the land.
I say with the greatest of respectto the court that I believe that's
(12:51):
incorrect on its face, that infact, those folks on the 800 acres
were affected immediately upon therelease of the decision from the
court that said, all that landthat's held privately can't rely
on the Land Title Act anymore.
One other comment I'll make.
The judge says, look, when theCowichan decide if they want to go
to court at some point and theywant to obtain that land, the
(13:15):
private landlords can defend itand they'll have their title.
But remember what I told youearlier, so what's the first
defense fee?You have to be a lawyer to figure
this out.
You're going to reach for your
title and go, oh, judge, they'renot entitled to my land because I
got this certificate of title fromthe government of BC that says I'm
(13:37):
indefeasibly entitled to thisland.
And the court will go, yeah, butthe guts of your title have been
erased because you can't rely onthe Land Title Act.
So all you're left with is a pieceof paper that is evidence that you
once had indefeasible title.
(13:58):
That is not an exaggeration.
I will just say it is nothyperbole.
I am not trying to fearmonger onyour show.
That is what the judge and thedecision said.
It's not open for argument.
In fact, the court was quite
articulate on this point.
Final point I'll make.
(14:19):
Remember I said the 800 acres.
The judge, interestingly, also
said, oh, by the way, a precedentthat's going to flow for my
decision.
is that my analysis of the effects
of title on private land, the factthat they can coexist according to
the judge, applies throughout allof BC.
Now, I didn't say that.
I'm telling you that's what the
court said.
I've got the paragraphs here
somewhere, right here, in sixdifferent places.
Now, why do I stress that to youas a final comment?
(14:40):
There's a lot of focus on the cityof Richmond, and I get it.
The claim was in the city ofRichmond.
But strictly speaking, The onlymaterial relevant parts of the
city of Richmond are the 800 acresthat title has been declared on.
The other comments about the LandTitle Act and the precedent, they
are not restricted to the city ofRichmond.
(15:01):
The media is sort of focused on,well, the city of, oh my goodness,
city of Richmond.
Look, I don't want to downplay for
the poor folks that are directlyaffected in the 800 acres.
And quite frankly, practicallyspeaking, the city of Richmond is
wearing this, practicallyspeaking.
But the judge did not restrict inany way the comments about the
(15:23):
precedent for the entirety of theprovince to Richmond.
That applies to every square inchof the province, according to the
judge in Cowichan.
And again, I'm not trying to fear
monger.
The judge is actually quite clear
in the decision on it.
So I'll stop there.
I know that was a bit for both.
(15:44):
ran through i think the guts of
the decision so just quickly sowhen was the decision and then so
she's given 18 months from herdecision before so we're roughly
just over a year out yeah we'refour months and yeah maybe a year
out the province has said it'sgoing to seek a stay that is like
stopping the effect of thedecision until the appeal is heard
(16:04):
as far as i know they have notdone anything to give effect to
that just quickly so when was thedecision and then so she's given
18 months from her decision beforeso we're roughly just over a year
out yeah four months and yeahmaybe a year out the province has
said it's going to seek a staythat is like stopping the effect
of the decision until the appealis heard as far as i know they
(16:28):
have not done anything to giveeffect to that And the fact that
we're in December and thisdecision was rendered in August, I
will just share with you, I thinkis appalling.
I think we're in an emergencysituation.
It's my view.
I'm not an elected politician.
I'm not democratically elected.
But as an observer of all this, I
(16:49):
don't know how much more seriousthis can get in a province, let
alone British Columbia, without onan emergency basis saying we need
guidance from the British ColumbiaCourt of Appeal on this as quickly
as possible.
So hopefully they'll file their
stay motion.
soon and get this case rolling and
moving so do we know kind of whatthe purpose of this was like what
was the couch and tribe trying toachieve was it like reconciliation
(17:13):
because it doesn't seem like youknow going after private land was
really on their strategy like havethey communicated in their case
like what exactly the outcome theywere desired for well look i'll
say two things on that kind ofwhat the purpose of this was like
what was the couch and tribetrying to achieve was it like
reconciliation because it doesn'tseem like you know going after
private land was really on theirstrategy like have they
communicated in their case likewhat exactly the outcome they were
desired for look i'll say twothings on that They have been
saying publicly, it's beenreported in the media, that
they're not after people's privateproperty, to put it colloquially
or plainly.
They're not after people's private
property.
Here's the problem with that.
And by the way, I'm not suggestingthey're trying to be misleading.
I mean, they can say it the waythey want.
(17:34):
Aboriginal title is the exclusiveright to land.
Okay?If you ask for Aboriginal title
and somebody says, here it is,should you be surprised that you
get the way?So, you know, it could have done
this other ways.
And so they could have said, we
want damages.
That's compensation.
Like we want money for breachingor infringing our title.
They could have asked for that.
(17:54):
That's what we want.
Just play devil's advocate.
They probably have asked for that.
This has just been the mostsuccessful thing so far.
Well, fair enough.
But you asked the question, what
were they seeking?Yeah.
They were very articulate andclear.
They want title.
Look, I agree with you.
There's other ways to do this, butthe point I'm trying to make is
(18:14):
they could have done itdifferently.
It's their right not to, I'm notquestioning the right, but to say,
well, we don't want people'sprivate property.
Well, you asked for title.
What did you think you were going
to get?to get?
So I guess the main issue with theoutcome is if you have Aboriginal
title, you cannot have fee simple.
Like is that the conflict?
I would say that's the lawcurrently in Canada.
Both fee simple and aboriginal.
So I've had a few people try to
correct me online by saying, well,you know, Tom has said fee simple
is an exclusive right to land.
There are car votes.
Of course there are car votes.
The crown can expropriate land.
It's like aboriginal title.
I get news for everyone.
It's not absolute either.
(18:35):
The crown can also.
justifiably infringed title, bythe way.
We might want to talk about thatbecause that's interesting.
But when I say they're bothexclusive rights, there are
caveats on both, okay?But they're essentially, if I say
you've got indefeasible title toyour land, that's against the
whole world.
That's as close to an exclusive
(18:57):
right to land as you get.
If I say you have Aboriginal
title, by definition, the courthas said it's not even crown land
anymore.
That's the court.
The Supreme Court of Canada issaying that.
So, How can you have two exclusiverights to one parcel of land?
You can't.
It's an obvious point.
Do you know, has anybody tried tosell a property on here or even
(19:17):
refinance one?Like, has anybody actually tried
going through the channels to doit?
So there has been some mediareporting.
there has been some mediareporting.
Yeah.
And I want to be very clear, you
know, to you guys that I've notbeen able to do due diligence on
the, you know, I want to be verycareful.
I think it's really important forme to be as accurate as I can be.
(19:37):
Yeah.
I've not done my own personal due
diligence.
There was one person, I know one
guy was saying he couldn't get hismortgage renewed.
I will tell you, I know thatMontrose has been public in the
media, and I have no reason not tobelieve them in terms of the
direct effects.
I think that was just this week,
in fact, that they were in themedia saying that financing and
(19:58):
lenders and all sorts of issues.
But here's what I can tell you.
I know of two examples, firsthandknowledge.
of two commercial purchases in theeight -digit range, okay, the tens
of millions, of two commercialparcels, two separate deals, not
on the 800 or the 1 ,800 acres,trying to be really clear, but
within the city of Richmond.
(20:18):
Both of those deals fell apart
because the purchasers walkedaway, and in both of those
instances, the only reason thatwas given was a lack of certainty
in British Columbia's land titlesystem and the Cowichan decision.
Now that's my firsthand knowledge.
So I can tell you that
definitively, you know, talking tocolleagues and know the firsthand.
Yeah.
I think if you take the media
(20:39):
reporting and what's out there andyou discount it by 50%, there
seems to be a lot going on.
I think if you err even on the
side of caution, and remember,we're only a few months into this.
Nobody's even heard this podcastyet.
That's right.
right.
I think from a financing point ofview, I've seen the media exposure
on that as well.
Hard to say, right?
Lenders don't really want tocomment on something that's not
solidified either, but in terms oflike the value or damage from the
resale, for sure.
(20:59):
Even just that lack of confidence
from a buyer.
Absolutely, that's going to affect
it.
Anyone suggesting this hasn't
affected the market.
Look, we could debate how much.
And I don't do what you guys do,right?
I don't pretend to be.
I just buy properties for myself.
And there is a buying opportunityright now in all of British
Columbia, which isn't great insome ways.
But anyone suggesting that therehas not been a direct and
(21:21):
immediate effect on the market,come on.
Like, look, we can debate howmuch.
Again, maybe about my pay grade todebate it.
Absolutely a direct effect.
I mean, the softening in the
market seems to be on a weeklybasis from what I'm observing.
And I'm not blaming that all.
And I'm not blaming Cowichan
(21:42):
Triarch First.
Also, I'm not blaming First
Nation.
I'm not going to put that all in
the decision.
I think that's unfair to put that
on our courts.
I would say the government of BC
needs to be much more bold on whatits next steps are going to be,
(22:03):
are going to be, though.
Obviously, we're super interested
in the real estate implications.
But what about things like
policing on that land or likebylaws?
Because I know like from our neckof the woods, when you get into
the West Bank First Nations, therecan be different laws when you go
into reserve.
Like, is this reserve land?
Yeah, it's not reserve land.
So reserve land is run under the
(22:24):
Indian Act system, which is astatute, a law.
Aboriginal title isconstitutional.
And here is what I'm going to bevery clear.
I'm going to use direct words fromthe Supreme Court of Canada.
If it's Aboriginal title, itbelongs to the First Nation.
It is no longer crown land.
Direct quote.
It's not crown land anymore.
The First Nation would have full
jurisdiction on that land.
(22:45):
For the most part, unless the
province and the federalgovernment wants to justifiably
infringe on that land.
And then in that case, the courts
have been very clear that theability to justifiably infringe on
Aboriginal title land, now I'musing direct quote, fairly broad.
But our governments don't likeusing that language because it
might offend someone.
What I would say to all of you, I
don't hesitate to use thelanguage.
(23:06):
I try to be respectful.
There are lots of indigenous
friends.
This is the legal toolkit we've
been given in this country.
That's the one tool government has
to balance aboriginal title rightswith the rights of the rest of us
in British Columbia.
So if you have a government going,
we'll never argue justifiableinfringement.
Never.
Well, now you don't have a
toolkit.
Do you understand?
That's the only tool you've got inthe toolkit.
(23:27):
Save and accept for an agreement.
And the way British Columbia
drafts its agreements, I wouldn'twant to be relying on their
agreements.
I said it.
It's true.
Will this be escalated at a
federal level?Like if the appeal, say, isn't
successful or if it is, does itjust continue on?
So in British Columbia, BritishColumbia, of the British Columbia
Supreme Court, that was thedecision in August.
Then we have the British ColumbiaCourt of Appeal.
That was a decision last week, forexample, on Nundrup and the
(23:49):
Drupalat Law.
That's the highest court in
British Columbia, is the BritishColumbia Court of Appeal.
What it says is final in BritishColumbia, subject only to the
Supreme Court of Canada.
In order for it to go to the
Supreme Court of Canada, leavemust be sought.
What does that mean?It's not an automatic right of
appeal.
In British Columbia, there's an
(24:10):
automatic right of appeal to theBritish Columbia Court of Appeal.
If you want to appeal from theBritish Columbia Court of Appeal
to Supreme Court of Canada, Imean, essentially you have to ask
the court.
And the court will go, yes, I'll
hear your appeal, or no, we won't,and here's the reason.
(24:31):
They usually don't give a reasonwhy.
They'll just say, we won't hearthe appeal.
And so do you think it would getto that level?
Do you think they would hear theappeal?
No, I've been doing this too longto know not to give a definitive
answer on that.
I think anybody giving a
definitive answer wouldn't beworth too much on that.
(24:53):
Look, this is obviously a really,really critical issue.
It raises fundamental issues aboutwhere we're going, not only in
British Columbia, but in Canada.
And, you know, my assumption would
be this would have a very goodchance of having leave granted.
But, you know, I've said thatbefore about decisions and I've
been wrong.
But just right now, like today,
looking at it.
(25:14):
I would say it's got a good shot
regardless of which way the courtof appeal were to go on this.
But this is the part of thechallenge with our justices.
We just don't know because we'vegot, you know, leave to appeal
first is what you'd have to see.
Do you know anything about the
situation in Kamloops?you know anything about situation
(25:34):
in Kamloops?What's happening?
Well, look, I mean, there's afocus on Kamloops that you've got
to claim over the city ofKamloops.
But yeah, I don't think peoplerealize that all of British
Columbia is claimed, right?That's my next question is like,
is there any?Yeah.
So, and again, with all duerespect to Kamloops and all my
friends in Kamloops, all ofBritish Columbia has either get a
(25:54):
formal legal Aboriginal titleclaim on it, or it has an
assertion of an Aboriginal titleclaim with the potential for
litigation to be launched at somepoint.
Now, this isn't a loan.
I mean, the province is covered.
covered.
But in countless, did they hear
what happened in Richmond anddecide to bring it forward to
court?Or like, why is countless in the
news then?I think people are just noticing.
I think, think people are justnoticing.
(26:15):
I think, look, I don't want tospeak for people, but what I take
from that is I think people arejust starting, which I think is
very good and healthy in ademocracy.
And for reconciliation, people aregoing, hey.
Isn't there a claim on their site?All I'll say is everybody needs to
take a look at the municipalboundaries because they're going
to find out that the entireprovince is claimed.
I don't care what city you're in.
You're going to have some form of
assertion of Aboriginal title onit.
(26:35):
I mean, there wouldn't be any partof the province I would point to
that doesn't have some form ofassertion of title or maybe a
settled treaty.
It might be a settled treaty area.
Just to be clear, we have treatyaid area.
Yeah.
And we have, of course, our modern
treaties of the Twasen Agreement,NISCA, for example.
(26:57):
But yeah, no, the province iscompletely claimed.
So I'm sitting in Vancouver.
It's got an assertion of average.
I live in West Vancouver.
It's got an assertion.
Kelowna, like everybody's got aclaim title.
What are we waiting for again?The decision?
No, we've already heard thedecision.
We're waiting for it to come intoeffect.
We're still waiting for an orderto be filed.
So we get the decision.
The way Canada works is you now
have to have an order from thedecision.
Then you can seek to appeal.
(27:18):
We're now, what, four or five
months in, no order.
Now, why the province hasn't
insisted on all the parties on anemergency basis, with maybe the
judge sitting at the head of thetable saying, we're getting in a
room, we're finalizing the orderas soon as possible within 30
days.
Why?
Because this is an emergency.
We have a public interest in
ensuring that British Columbia,all British Columbians, Indigenous
(27:41):
and non -Indigenous, have somepredictability in their justice
system, and we get this in frontof our highest court as soon as
possible.
I haven't ordered yet, and I don't
know when it's coming.
I suspect it's 2026 sometime.
This to me is the big issue isthere is a role for government to
play here in terms of leadershipand very disappointed with what
I'm seeing.
I mean, mean, with that said, I
guess, and this might be a toughquestion, but what would your...
(28:04):
decision have been like if youwere the judge or like what would
you like to see the outcome nowwhat i would have said is that the
granting of feasible interestextinguished any aboriginal title
that's what i would have said andit's possible and the crown should
go back to the negotiation tableeven if there isn't a direct legal
remedy in that instance the crownneeds to do the right thing and
(28:25):
negotiate a solution with whateverfirst nations one were to
ultimately conclude that title ori could have said outcome now what
i would have said is that thegranting of feasible interest
extinguished any aboriginal titlethat's what i would have said and
it's possible and the crown shouldgo back to the negotiation table
even if there isn't a direct legalremedy in that instance the crown
needs to do the right thing andnegotiate a solution with whatever
(28:48):
first nations one were toultimately conclude that title or
i could have said I find the titleexisted here, but it is
justifiably infringed by thegranting of a fee simple interest.
Crown, you owe them somecompensation.
This isn't rocket science, and Isay that with respect.
I mean, putting people's privateproperty on the chopping block
isn't reconciliation.
There, I said it.
Stand by it.
Sorry, but that's not all of us
living together.
And, you know, we are a settled
(29:08):
country.
I'm not moving from British
Columbia.
I got news for everyone.
You know, so we've got to learn tolive together.
And our Indigenous friends, and Ifeel very strongly about this,
have a right to justice.
This country voluntarily amended
its constitution.
And until we do other amendments
to our constitution, we're boundby that constitution.
I've got lots of Indigenousgovernments.
(29:28):
They have every right to pursuetheir claims.
I want to be very clear aboutthat.
It's a free country.
That's what makes our country
great.
There's an obligation on our
public governments to govern andto lead and not hide behind double
speak and triple speak.
I travel the country, right?
So we work across Canada.
What's the biggest issue in
Aboriginal law?And I have been giving the same
(29:51):
answer for two decades.
There is no problem in Aboriginal
law.
I mean, look, we got gray areas.
The Cowichan decision, don't getme wrong.
The lack of a long -termsustainable public policy
framework within which to dealwith these claims in British
Columbia is palpable.
And we all know it.
And I'll say it.
We all know it.
We all feel it.
How are we supposed to reconcile
with 200 constitutionallyprotected governments?
I haven't even talked about theMétis yet.
(30:12):
You know, we better come up withit as opposed to first past the
post.
So, you know.
A Haida agreement, great.
Well, what about the other 150
First Nations?Are they getting 100 % of their
asserted traditional territory?Don't they deserve reconciliation
too?So how are we going to reconcile
with 200 First Nations in thisprovince in a way that is
respectful to them and to theirconstitutional rights, but that
also leaves us with a provincethat is governable?
I'm not trying to be provocativeby asking that.
But that is the question.
I'm sorry.
That's the question.
And I think most British
Columbians, ultimately, I thinkthey know that is the question.
I've not heard anyone come forwardwith even a clue on what that
looks like.
And our public governments need to
be the ones to do it, not FirstNations.
(30:33):
That's not on them.
That's unfair.
It's not on our courts to do thatfor us.
It's not on industry.
It sounds like the lack of
accountability on that side hasnow led to, you know.
collateral damage for thoseprivate owners of that section.
I mean, you're closer proximity,like geographically.
Have you spoken to Richmondmunicipality or private owners?
(30:55):
Like, is there just outrage or arewe still kind of naive to the fact
that this is going to say to mixedbag?
say to mixed bag?British Columbia is an unusual
political jurors that people don'tlike to speak up here.
And I think what the concern is,is they're worried about what
they'll lose.
And I understand that.
To be clear, I get that.
(31:15):
But I don't think those same
people understand what's at stakehere.
This isn't just about Cowichan.
This isn't about, I'm not picking
on Cowichan tribes.
I've got nothing against the
Cowichan nation, by the way.
I wish them all the best.
I do, and quite genuinely, this isabout a much bigger issue of where
is our province going?And do we actually want a
(31:37):
functioning economy in thisprovince?
I'll put it another way to you,and this may be a bit more
provocative, but I'll say itbecause I've been trying to think
of how to put this.
We have one third of the First
Nations in our country in BritishColumbia.
Suddenly look at that and say,that's a blessing.
Are we lucky to have that manyrich cultures in one jurisdiction?
(32:00):
And I mean that quite genuinely,by the way.
I don't mean that in any waysarcastically.
But of course, there's a challengewith that.
We've got 200.
We've got one third of all.
And our province has only settledsome of the need for outstanding
treaties and the claims,relatively small proportion.
So do you want to know theperversity of that situation?
(32:22):
In terms of affordingreconciliation in a way where we
can still keep a health caresystem and have roads and maybe
someday buy some new ferries, wehave a need to have more mines,
more pipelines, more nuclear.
more forestry, more mining,
proportionately than any otherjurisdiction in the country.
I said it.
It's true.
How are we going to afford this?Again, this is the perversity of
(32:46):
the situation we find ourselvesin, that in order to meet the
obligations that our publicgovernment has, the idea of
weaning away from development,we're in the opposite situation.
We need to be developing at a ratethat exceeds any... other
jurisdiction proportionally in theFederation, because we have a much
bigger task in front of us.
Yes, Nova Scotia, Prince Edward
Island might have some outstandingclaims.
They are dealing with maybe adozen First Nation, two on Prince
(33:07):
Edward Island.
We've got 200.
The numbers don't work here unlessyou have the single most robust
economy in the country.
We've not come to grips with this
and we're doing the opposite, itfeels like.
So please challenge me on what Ijust said to you, if you think I'd
pray on this.
(33:28):
No, so you're saying to ramp up
the resource extraction and allthat to pay for basically...
Well, how are you going to do withthat?
Well, how are you going to do withthat?
So somebody needs to lay out to methe economic plan of how we're
going to reconcile with all 200plus First Nations and the Métis
in British Columbia and still...
be able to have healthcare,
education, roads.
Again, I'm not arguing against
reconciliation.
The opposite.
(33:48):
I'm in favor of reconciliation.
I'm a big supporter.
But if we don't have the honestdiscussion of, well, okay, we've
only got so much land.
Land is finite in this province.
How are we going to construct aneconomy that respects all those
individual indigenous governments?and still allows us to have the
capital and resources to doreconciliation properly.
(34:10):
Well, I don't think you have tobe, again, as I say, the country's
chipping the bag to figure out, wedon't have the answer to that
question right now.
All you have to do is look at the
BC economy, and we haven't evendealt with the majority of First
Nations yet in this province,remember.
They're not at the table.
They're not getting the attention.
So I hate to rip the bandage offlike that, but I think we're at a
(34:32):
point no one else seems to betalking about it.
So I'll say.
So obviously this is a pretty
monumental decision in the court.
And now you have people like you
and more and more people talkingabout, well, we just need to start
coming up with some money to justpay them to settle these old,
obviously the unceded land and allthat, all that lingering issues,
(34:53):
right?Is that kind of what?
Yeah.
I mean, I'm not sort of saying
just pay them.
What I'm saying is that capital is
finite.
There's only so much land.
We can only grow our economy sobig, but it better be bigger than
what it is today.
And by a significant margin, all
(35:16):
of us know how our standard ofliving has dropped.
I talked to a lot of British, Italked to a lot of Canadians.
Everybody is feeling it across thecountry.
I haven't met a British Columbianyet that feels like their standard
of living hasn't dropped in thepast decade.
That is not a partisan comment, bythe way.
(35:36):
I want to be very clear.
It's just as a statement of fact.
And there's a variety of reasonsfor that.
But, you know, I don't mind payingtaxes, but I want to see my taxes
do something.
We improve the downtown east side.
We're settling treaties with moreFirst Nations.
(35:57):
We're treating those FirstNations, not first past the post,
but if you've got bad drinkingwater, we actually have money.
to help those first nations we'repromoting economic development
we're getting jobs for britishcompanies we're proud to call
ourselves british colombians whichi am as opposed to a resident of
british columbia which i think ourgovernment wants us to call
ourselves now if economicallythere weren't restrictions like
(36:18):
obviously that's a huge a hugehurdle and there are no obvious
solutions but let's just take thatout of the picture for a second
from a time frame point of viewlike this case was historically
the longest in canada righteconomically there weren't
restrictions like obviously that'sa huge a huge hurdle and there are
no obvious solutions but let'sjust take that out of the picture
(36:40):
for a second from a time framepoint of view like this case was
historically the longest in canadaright potentially now that this is
like case study, we have aprecedent of it.
How fast do other cases come uplike this and are settled?
Like how, how fast doesreconciliation occur now that we
have something to work off of?If we negotiate proper
(37:05):
settlements, we negotiate propersettlements, I use the word proper
deliberately, by the way, propersettlements that could be done
more quickly.
I'm a big fan of the treaty
process.
I think the treaty process is the
ultimate objective in thisprovince.
That's my belief.
Why?
Because a constitution protectsthe rights and it's apples to
apples.
So when you say in a treaty, we
will protect feasible rights, thatmeans something constitutionally.
You say it in a contract and, youknow, so I would disagree that we
can't do it a little differentlyright now.
(37:25):
We could open this province up fordevelopment.
We should be California North.
I've always said that.
We should be one of the strongesteconomies on the planet.
I don't mean Canada.
I mean British Columbia.
We have chosen not to.
And the question then is, okay,
that's a choice I guess we'vemade.
Some people have made.
I certainly have a decision that
was up to me.
I'd be the opposite.
(37:45):
Why?So I could actually treat all
First Nations equally.
treaties in a way that would be
meaningful for First Nations sothat they go out and buy land on
the market.
I would not take people's private
property away.
I do everything possible to
protect people's private property.
These are the kinds of core
principles we need to land on.
But we're not there today.
But I would just say that that'sall within the power of our public
(38:09):
governments.
Look, there's examples on the case
law that are gray.
It can take a long time to move
through court.
But our governments today have a
whole suite of tools in front ofthem.
They choose not to use them.
And they will justify why they
don't.
And people will need to judge
whether they've been successful inthat.
I would say we have not beensuccessful.
I think we should use the toolkit,do it transparently, and make this
(38:34):
province prosperous.
for Indigenous and non -Indigenous
peoples as opposed to the first-past -post reconciliation.
That's what I call it right now.
You know, and I'm not going to
name the First Nations because Iwish them well and I'm happy to
see them doing well.
But we all know what I'm talking
about.
My Indigenous friends know what
I'm talking about because many ofthem aren't first -past -the
(38:56):
-post.
They're not the ones that get the
deputy ministers coming to visitthem.
We can't be running the provincethat way.
We've got 200 -plus Indigenousgovernments in this province.
They all deserve to be treatedwith respect, as do the non
-Indigenous citizens of thisprovince.
So we need to rethink andrecalibrate the way we've been
doing business.
And I'm not just blaming the Eby
and the Horgan governments onthis.
It would be unfair of me to dothat.
I'm not.
They've exasperated it.
They really have.
But this has been building for
three decades through successivegovernments in British Columbia.
of pushing off the big questionsand not coming up with the
ultimate goal.
So you think if we negotiated
(39:19):
earlier, it would have never gotto court?
Maybe not.
I mean, there's a right in this
country to go to court.
And that's simply the reality of
Canada.
The issue is what do you do when
you go to court?Do you go in there and vigorously
defend the simple title and say,we either do it this way or we
will amend the constitution toprotect private property rights?
(39:42):
To me, that would be leadership.
That's what's needed.
I don't think that's offensive toreconciliation.
There'll be people that disagreewith me.
They're entitled to disagree withme, but we need to have a civil
dialogue on this.
I guess for people that are
currently, guess for people thatare currently, I mean, we'll just
maybe move out of Richmond, sayKamloops or West Kelowna or pretty
(40:02):
much anywhere in the province.
Well, I think it's more of a
Kelowna issue than West Kelowna.
Well, I'm just thinking if
people... are nervous or cautiousor want like a tangible takeaway
from this to say, okay, here'swhat I can do to potentially
mitigate anything moving forwardto my fee simple.
(40:23):
Is there anything like, is itjust, Hey, I'm going to sell my
house and get out of the marketand vote for different, different
government.
Um, uh, so I'm not laughing at
your question.
It's just, I laugh.
laugh.
Yeah.
Don't worry about it.
I'm trying to be polite.
I said no. No, the reason I'mthinking is that, I mean, the
(40:43):
reality is the individual isalmost powerless in this
situation.
And this is why I keep calling on
our public governments, both theprovincial and the federal
government.
The federal government's got to
step forward on this too.
This is about the economy in
British Columbia.
And we are part of the federation
after all.
And so I don't know what to say to
(41:05):
that question.
I understand it's the core
question for your listeners.
So I ultimately believe there's
only one answer to this.
So here's my answer.
I ultimately believe that at theend of the day, indefeasible title
has to stay indefeasible as atitle.
Now, why do I say that?I say that because the alternative
is bleak.
(41:26):
It would mean that we would be the
only jurisdiction in any of theWestern economies.
Were your indefeasible titlesdefeasible?
I don't have to tell both of you,I know what you do and your
expertise or any of yourlisteners, what that means.
That is bleak is probably anunderstatement.
So I believe that ultimately thecourts will do the right thing and
say, no, no, no, no. This wasnever the intention of Section 35.
(41:47):
You know, reconciliation has gotto be a two -way street.
It's not a one -way street.
We know this already.
And in the meantime, it's a buyingopportunity as the market slumps.
I'm not blaming it all on theCowichan decision, to be very
clear.
I think we're already in a market
slump.
It doesn't help.
And I'll stand by that.
I don't think somebody can debate
(42:08):
that with me.
It doesn't help.
But I think there's opportunitiesright now.
And I think people have to makethat individual decision where
they're at.
I mean, I feel for people maybe
towards retirement that werewaiting to sell their home.
I'm worried to see what happens in26.
The lenders have not been vocalabout it.
I think in some ways that's a goodthing.
(42:29):
The problem is that the provincetakes that as acquiescence.
This is the problem in Britishgovernment.
We've had this for three decades.
And again, I'm not blaming the
current government alone.
I've been saying this.
nuance and subtlety with thisgovernment get you nowhere.
If it's not directed, that's theproblem.
Is there somewhere you can look upto see where there's a claim?
can look up to see where there's aclaim?
There's no one site, but on theGovernment of British Columbia
(42:51):
website under IndigenousRelations, they have their claims
page.
And you can see where First
Nations claim throughout theprovince.
And that's actually a greatresource.
The Treaty Commission is a greatresource.
And the Federal Crown IndigenousRelations website, that's where we
go, quite frankly, to get.
where the claims... I feel like
there's an app opportunity herefor someone to fire up an app that
you just type in your address andsee how many...
Unfortunately, that's a good idea.
like there's an app opportunity
(43:12):
here for someone to fire up an appthat you just type in your address
and see how many... that's a goodidea.
I wish I didn't have to say that.
That's actually a good idea.
I mean, the problem is, though, islook, we can live with assertions
of title.
I want to be clear.
We've lived under assertions oftitle.
First Nations have a right toassert title.
(43:35):
The issue is what is our publicgovernment doing to have a game
plan on how we're going to get...
to ultimate reconciliation.
We don't have that and we haven'thad it and we need that and we
need it pronto and we needleadership statements from our
government on what they're goingto do to protect our markets.
(43:57):
And it's not enough to say, well,we're going to file an appeal.
Yeah.
Yeah.
Great.
Good.
We're in an emergency situationand I think it demands an
emergency action.
I mean, this is why we have
governments is that when we havean emergency, I don't know what
you guys are feeling, but, youknow, I talk to a lot of people.
I meet a lot of people every weekacross the country.
(44:18):
Lately in British Columbia, I livein BC, but I've been meeting a lot
of people in BC lately.
There's a hungry need for
leadership right now.
I think people would welcome
really clear, crisp leadershipfrom Premier Eby right now.
I mean, very genuinely, eventowards him.
We need that right now in thisregards which party you vote for.
There's a hunger right now.
(44:38):
for crisp, clear leadership and
guidance about where this provinceis going.
That would be welcomed, I think,by everybody.
And I think that answers a bit ofthe earlier question, except then
it's up to people to call theirMLAs and go, please give some
clearer guidance.
What should people be looking out
for?Like, what's the next step?
(44:59):
Like, what's the next thing that'sgoing to hit the news?
We are waiting for a decision fromNew Brunswick.
Very different case, butultimately dealing with the role
of private property in Aboriginaltitle.
That decision is coming very, verysoon.
So, and that'll be from anappellate court.
Remember I said the lower courtand the court of...
Well, in New Brunswick, thesuperior court is the New
Brunswick Court of Appeal.
The next court after that is the
(45:21):
Supreme Court of Canada.
That decision is coming soon.
Second, the Cowichan decision,waiting for the order to be
settled.
And remember, Montrose has a
motion to be added as a party tothat.
And so I believe that motion needsto be heard first.
I believe I could be wrong onthat, but we need to settle that
order in Cowich before we can betalking about an appeal and
(45:41):
interveners and all that business.
So that's what I'd be watching out
there.
My law firm is castles
com, C -A -S -S -E -L -S.
People type in my last name,
Isaac, I -S -A -A -C.
They'll get my bio.
We produce a fair amount ofmaterial.
You can add your name to ourmailing list.
And look, I really thank both ofyou, by the way.
I mean it very genuinely in beingable to talk about these issues.
(46:03):
I think we need to encourage civildialogue, respectful dialogue to
our Indigenous friends and to ournon -Indigenous friends.
So we've got to work our waythrough this.
But we need to start talking thetruth about how we're all going to
live together and have aprosperous, it's one thing to live
together, but if it isn'tprosperous and it's not attracting
capital.
It's not going to be a very nice
living arrangement.
You know, like living with a
spouse, no income coming in.
It can be a little pesty.
Nice when there's lots of cashflowing around.
Well, no, but it is.
We need to start looking at our
(46:25):
province that way.
And look, I get there's tension on
our environment and that, but welive in a capitalistic world and
First Nations also and Métis alsohave a right to economic
sovereignty.
So we better start figuring this.
this out so but thank you by theway i really appreciate the
opportunity i hope i wasn't tooobtuse i tried to use a bit more
(46:45):
plain language that i the doctorbut thanks to both of you oh you
were awesome yeah reallyappreciate it we'd love to have
you on in the future once yeah wekind of know more about this
obviously you were awesome yeahreally appreciate it we'd love to
have you on in the future onceyeah we kind of know more about
(47:06):
this obviously
Welcome back to the Cologne RealEstate Podcast.
(00:01):
Podcast.
I'm your mortgage broker host,
broker host, Taylor Atkinson.
And I'm your real estate agent
host, Matt Glenn.
Merry Christmas, Taylor.
Merry Christmas.
You guys got down from Big White
this weekend?How was it?
It was awesome.
We stayed at Big White.
Best client.
I actually had that awesome place
listed.
He let us stay at his chalet on
Feathertop in Big White for theweekend.
Stayed there with my family.
It was fantastic.
Such a nice place.
(00:22):
Big white was awesome.
Snow was out.
We watched the fireworks on
Saturday night.
We let him, our two and a half
year old Julian stay up late forthe fireworks.
And like, I don't think fireworkshave ever landed so well with an
audience member.
He just screaming, laughing.
He loved it so much.
It was actually very awesome to
see.
It blows me way up there every
weekend.
they do the family carnival like
(00:43):
they really go after that familycrowd it's awesome i love it man
so we were up there for theweekend we didn't ski we did
everything else back in our likeman we need to get a place up here
like you have one but like it isso nice and like we didn't even do
the thing that you're supposed todo there and it had such a great
weekend so it was awesome it wassuch a good weekend and happy to
kick off the holiday that way yeahwicked how was your weekend you
(01:04):
were doing nothing but good thingsfor the community yeah yeah we had
our fourth annual uh i love it manso we were up there for the
weekend we didn't ski we dideverything else back in our like
man we need to get a place up herelike you have one but like it is
so nice and like we didn't even dothe thing that you're supposed to
do there and it had such a greatweekend so it was awesome it was
such a good weekend and happy tokick off the holiday that way yeah
wicked how was your weekend youwere doing nothing but good things
for the community yeah yeah we hadour fourth annual charity
Christmas event.
We hosted a Barn Owl.
We do a silent auction, which BigWhite actually donated a basket
for us to auction off, which wasawesome.
A lot of local businesses donated.
So yeah, we funders a bunch of
money that way.
We did our shuffleboard
tournament, had a baby deliverybedding pool because one of the
ladies is, well... probably givenbirth today.
Like there's, I think there's sixhours left in the betting pool,
(01:27):
but she's, she's getting inducedtoday.
So yeah, lots of fun ways tofundraise some money for local
families in need.
I haven't tallied it up yet, but
we're probably close to about 5,000 bucks this year, which is
just awesome.
So good for you for doing that.
good for you for doing that.
I want to say community is better
because you're an idiot.
Proud of you.
That's awesome.
(01:47):
Thank you.
Likewise.
Well, I can't take all the credit.
Emily does a ton of the work forit.
Yeah.
You know, so her as well.
Yeah.
We get to just.
do something fun and get back tothe community.
And yeah, lots of good friendsthat get humbled by the process.
So yeah, it's awesome.
Speaking about being humbled and,
you know, trying to navigatesomething, you know, that's
somewhat sensitive and difficult.
Today we hosted Tom Isaac, an
extremely knowledgeable lawyerthat practices Aboriginal law
across the country and has spenthis entire career doing so.
(02:10):
So, you know, I think anyone thathas been following the news in the
last six months has probably seenCowichan Tribe.
court case going on, specificallymostly to Richmond.
So far, but it does seem to bebleeding to the rest of the
province, for sure.
(02:31):
It is definitely going to impact
the rest of the province.
We're very grateful to have Tom on
the show.
He articulates what's going on
incredibly well to kind ofsummarize what has happened and
what is, you know.
Yeah, because we've talked to him
on Tuesday and there's been somenews since, there's been some news
since, right?A lot, yeah.
So we'll just kind of start bysaying this has been... one of the
(02:52):
longest court cases in Canada,we'll just kind of start by saying
this has been... one of thelongest court cases in Canada,
although we're only really hearingabout it from the news side, you
know, recently, but 513 hearingdays over the last five years.
And the court's decision was toaward Aboriginal title, which
essentially they're saying cancoexist with fee simple private
ownership.
And it just by law, it just
cannot.
So Tom kind of dives into that.
And essentially, you know, fromthat decision, we have 18 months
until Everything can be submitted.
(03:13):
It would likely then go to the
Court of Appeal, which is the nextlevel up.
And then from there, if it needsto, it goes to the Supreme Court
of Canada.
And a similar case has happened in
New Brunswick.
And again, last week on, I believe
it was Thursday or Friday, theyactually announced that they would
(03:35):
not be moving forward withawarding Aboriginal title.
So they would be keeping feesimple in place.
place.
So similar court case, just
farther along, kind of a differentresult in New Brunswick than what
we have in BC.
Yeah.
Yeah.
And I think Tom alluded that that
would kind of set the precedent inBC now.
Yeah.
Totally different provinces,
totally different, you know,decision capacity.
(03:55):
So, you know, I don't want to saylike it's going to happen here
because it happened there, but itwas interesting to see that.
In our episode, our episode, Tomwas looking forward to what was
coming out of New Brunswick.
So we have that answer.
have that answer.
Yeah.
Yeah.
You know, one of the quotes from
the judge and I'll just paraphraseit was essentially, you know, if
they awarded Aboriginal title,that would be the.
(04:15):
you know furthest thing fromreconciliation like that is just
not the way forward and you knowwe kind of understand the irony of
this situation and you know wedon't take it lightly like it's
there's just no there's nosolution like how do you provide
reconciliation on on somethinglike this it's just a very
difficult scenario so yeah mattand i are you know we just want to
provide the content on ourplatform and speak with someone
that knows a lot more about thisthan us so that's why we had tom
(04:39):
on the shelf Yeah.
And then Tom also in our show is
calling on Premier Eby to startmaking some statements and helping
out a bit.
And so our show is on Tuesday and
on Wednesday, sounds like he did.
So from Eby says, to face such
dramatic, overreaching andunhelpful court decisions as we
have seen over the past couple ofmonths is deeply troubling.
Premier said, we will fix thisbecause the uncertainty this case
(05:00):
creates is toxic to the work wehave to do with First Nations and
businesses and the economy that wehave to grow.
It is hard to understate thedamage that could be done or has
already been done to the publicsupport for the delicate,
critical, and necessary work wehave to do with First Nations.
So it sounds like David E .B.
is kind of pissed about the
rulings and wants to get themfigured out.
(05:21):
Yeah, and he's also gone on recordagain, this was very recently,
that the province of B .C.
will be offering $150 million to
basically back financialinstitutes so they have the
security to either refinance orcomplete on purchases in the
Richmond area.
No idea how that actually plays
out.
I think it's just a confidence
play, right?It is.
Yeah.
I mean, someone could say that the
damage is kind of done.
Anyone that has ownership in
Richmond right now is probablystruggling for resale or lost
(05:42):
value or just like thatuncertainty is going to cause a
lot of stress.
Even if the banks could refinance,
like let's see appraiser going tothink about this.
Well, yeah, like with the comps,it's just going to affect the
comps in the area, right?Like things are not going to.
likely sell.
Tom Isaac actually points out, you
know, it might be a little bit ofan opportunity.
(06:05):
There was some optimism from himin terms of like, this will get
settled because the alternativeis, is impossible to think about.
Well, and also where does it stop?Is it just like, man?
Yeah.
It could be like a total, like
major shift in real estate Canada.
And this is like we said at the
beginning, this is applicable.
across the province you know we
have i think what tom was sayingis you know some of the the
(06:26):
longest history and most amount offirst nations tribes in canada so
i think we have the most tribesright like there's like 200 yeah
there's over 200 yeah so all ofthem have their treaty claims
we're blessed with the culture butthis is something that needs a lot
of attention and it probablyhasn't been getting a lot of
attention or maybe some of thewrong attention so anyways i think
(06:47):
You know, we'll just let you guyslisten to Tom.
He's fantastic.
He also states that, you know, you
can sign up for his newslettersand blogs that he gets out there.
He's also on the news quite a bit.
So he is.
Yeah.
Yeah.
Super fortunate to have him.
Yeah.
So yeah, give it a listen andhopefully you guys have a great
Christmas and New Year's and we'llsee you guys in 2026.
Yes, sir.
(07:07):
All right.
This episode, like every episodesponsored by Century 21 Insurance
Realty, best brokerage in theOkanagan, not just the Okanagan.
We're talking and surroundingareas, Kamloops, Kootenays, East
Kootenays.
Yeah, we're the brokerage that's
everywhere.
Also, we're growing.
We just kind of merged withexecutive property management.
So we have now have a quite asizable property management
division as well.
So if you are a investor looking
for a property manager to helpwith you with your portfolio, or
if you're a buyer or sellerlooking for an agent, or if you're
(07:31):
an agent looking for a brokerage,Century 21 is a place to call.
You can even just call me and I'lllove talking about it.
So enjoy the show, you guys.
Merry Christmas.
See you in 2026.
Okay.
Tom Isaac, thank you for joiningus on today's show.
We've been patiently kind ofwaiting to have a guest of your
(07:53):
caliber.
Can you just quickly kind of give
us a background of who you are andwhat you're currently practicing?
Sure.
Sure.
So, well, my name's Tom Isaac.
I'm a lawyer.
I've been practicing in Aboriginallaw for... a long time, and I
started my career in the publicservice.
My first job was with thegovernment of Saskatchewan, and
then went up to the NorthwestTerritories and helped set up
Nunavut, and then I was ChiefTreaty Negotiator in British
(08:14):
Columbia.
And for the past 25 years, I have
focused on an Aboriginal lawpractice in every province of
territory of Canada.
work primarily for industry and
public governments.
Not all those mandates are public.
Very proudly have started workingwith some Indigenous governments
on, you know, the right matterswhere we can add value.
And so I've been doing this mywhole career.
(08:35):
I've published a lot in the area.
I appear in a lot of courts across
the country.
We have a large group.
Awesome.
Have you done any work within the,
like, West Cologne?Any of you been there?
Oh, yeah.
Yeah.
I'm very familiar with the Kelownaarea.
I've worked on some infrastructureprojects without getting into the
details.
And yeah, I know that area very
well.
Just bought a condo in Kelowna.
(08:56):
They're trying to help.
And actually very proud to now be
at least a partial resident ofKelowna.
At least my son going to UBC is.
I'd like to hear that.
Yeah, no, it was great.
And I mean, there was a point when
I was in Kelowna, that whole area,probably twice a month for at
least three or four years.
Oh, really?
And, you know, you've got, well,West Bank First Nation, got some
(09:18):
very good memories of working withthem very productively, I might
add, really?on helping build out
infrastructure for all people wholive in the area.
Yeah.
Well, I think, I mean, to jump on
today, because we have so muchinformation to cover, can we just
kind of talk about Cowichan Tribeversus Canada?
what has happened over the lastfew months.
Obviously, this has been quite along court decision, I guess, to
(09:38):
summarize it, but can you justgive us high level what's going on
and we can discuss it from there?Sure.
There is a lot, so I'll try to bevery brief.
The claim was originally filed in2014.
The trial ended in 2023.
So nine years later, 513 days of
trial time.
I believe now they say it's the
longest trial, civil trial inCanadian history, and then almost
(09:59):
two years to get the reasons fromthe court.
So the claim ultimately at the endof the day was for approximately 1
,800 acres of land in the city ofRichmond, a declaration of
Aboriginal title on those lands.
Aboriginal title is a right to the
land.
It's the Aboriginal right to land.
It's not an interest in land.
We'll talk about that maybe a bit
(10:19):
later.
It's a right to the land.
And then at one point, before Iget to the decision, this is
important, I think.
At one point, some folks came
forward and said, hey, shouldn'twe give notice to the other folks
within the 1 ,800 acres thataren't named?
So you have Canada, BC named theairport authority, Thawasson,
Musqueam, and the city ofRichmond.
(10:42):
And the court decided no. We don'tneed to give notice to the other
landowners, and those ownersinclude businesses, some large,
some small, and privatehomeowners.
We don't need to do that becausethe decision won't affect them.
Remember that.
We're going to come back to that
in a few minutes.
So fast forward to August of this
(11:05):
year and the reasons come out.
And the judge found that there is
Aboriginal title on 800.
of the 1 ,800 acres.
So you've got now black linearound 800 acres.
The judge said, I'll give 18months before my decision takes
effect.
And in the meantime, British
Columbia, you need to go negotiatewith the Cowichan to sort out all
these other private landownersthat were part of the litigation,
(11:27):
but whose land now is encumbered,as the judge put it, with
Aboriginal Title.
The judge said that the Land Title
Act on the 800 acres doesn'tapply.
Think about it.
You own land right now.
You rely on the Land Title Act,and specifically it's Section 23
and 25.
(11:47):
The whole Land Title Act's
important, but as a lawyer, I likethe whole act, but it's 23 and 25,
and what those sections basicallysay is, see this, this title?
This means something against thewhole world.
including the government, that youown this land.
What the judge says in thedecision is that on the 800 acres
(12:08):
and off the 800 acres, the LandTitle Act doesn't apply.
But she doesn't invalidate thetitle, interestingly.
So she says, you get to keep yourtitle.
This is how I describe it.
I'm just going to erase everything
on the page.
Because the guts of the title,
(12:30):
like what makes the paper valuableis the Land Title Act.
The judge, interestingly, alsosays that the decision doesn't
affect private parties until theCowichan or another First Nation
goes to obtain the land and takepossession of the land.
I say with the greatest of respectto the court that I believe that's
(12:51):
incorrect on its face, that infact, those folks on the 800 acres
were affected immediately upon therelease of the decision from the
court that said, all that landthat's held privately can't rely
on the Land Title Act anymore.
One other comment I'll make.
The judge says, look, when theCowichan decide if they want to go
to court at some point and theywant to obtain that land, the
(13:15):
private landlords can defend itand they'll have their title.
But remember what I told youearlier, so what's the first
defense fee?You have to be a lawyer to figure
this out.
You're going to reach for your
title and go, oh, judge, they'renot entitled to my land because I
got this certificate of title fromthe government of BC that says I'm
(13:37):
indefeasibly entitled to thisland.
And the court will go, yeah, butthe guts of your title have been
erased because you can't rely onthe Land Title Act.
So all you're left with is a pieceof paper that is evidence that you
once had indefeasible title.
(13:58):
That is not an exaggeration.
I will just say it is nothyperbole.
I am not trying to fearmonger onyour show.
That is what the judge and thedecision said.
It's not open for argument.
In fact, the court was quite
articulate on this point.
Final point I'll make.
(14:19):
Remember I said the 800 acres.
The judge, interestingly, also
said, oh, by the way, a precedentthat's going to flow for my
decision.
is that my analysis of the effects
of title on private land, the factthat they can coexist according to
the judge, applies throughout allof BC.
Now, I didn't say that.
I'm telling you that's what the
court said.
I've got the paragraphs here
somewhere, right here, in sixdifferent places.
Now, why do I stress that to youas a final comment?
(14:40):
There's a lot of focus on the cityof Richmond, and I get it.
The claim was in the city ofRichmond.
But strictly speaking, The onlymaterial relevant parts of the
city of Richmond are the 800 acresthat title has been declared on.
The other comments about the LandTitle Act and the precedent, they
are not restricted to the city ofRichmond.
(15:01):
The media is sort of focused on,well, the city of, oh my goodness,
city of Richmond.
Look, I don't want to downplay for
the poor folks that are directlyaffected in the 800 acres.
And quite frankly, practicallyspeaking, the city of Richmond is
wearing this, practicallyspeaking.
But the judge did not restrict inany way the comments about the
(15:23):
precedent for the entirety of theprovince to Richmond.
That applies to every square inchof the province, according to the
judge in Cowichan.
And again, I'm not trying to fear
monger.
The judge is actually quite clear
in the decision on it.
So I'll stop there.
I know that was a bit for both.
(15:44):
ran through i think the guts of
the decision so just quickly sowhen was the decision and then so
she's given 18 months from herdecision before so we're roughly
just over a year out yeah we'refour months and yeah maybe a year
out the province has said it'sgoing to seek a stay that is like
stopping the effect of thedecision until the appeal is heard
(16:04):
as far as i know they have notdone anything to give effect to
that just quickly so when was thedecision and then so she's given
18 months from her decision beforeso we're roughly just over a year
out yeah four months and yeahmaybe a year out the province has
said it's going to seek a staythat is like stopping the effect
of the decision until the appealis heard as far as i know they
(16:28):
have not done anything to giveeffect to that And the fact that
we're in December and thisdecision was rendered in August, I
will just share with you, I thinkis appalling.
I think we're in an emergencysituation.
It's my view.
I'm not an elected politician.
I'm not democratically elected.
But as an observer of all this, I
(16:49):
don't know how much more seriousthis can get in a province, let
alone British Columbia, without onan emergency basis saying we need
guidance from the British ColumbiaCourt of Appeal on this as quickly
as possible.
So hopefully they'll file their
stay motion.
soon and get this case rolling and
moving so do we know kind of whatthe purpose of this was like what
was the couch and tribe trying toachieve was it like reconciliation
(17:13):
because it doesn't seem like youknow going after private land was
really on their strategy like havethey communicated in their case
like what exactly the outcome theywere desired for well look i'll
say two things on that kind ofwhat the purpose of this was like
what was the couch and tribetrying to achieve was it like
reconciliation because it doesn'tseem like you know going after
private land was really on theirstrategy like have they
communicated in their case likewhat exactly the outcome they were
desired for look i'll say twothings on that They have been
saying publicly, it's beenreported in the media, that
they're not after people's privateproperty, to put it colloquially
or plainly.
They're not after people's private
property.
Here's the problem with that.
And by the way, I'm not suggestingthey're trying to be misleading.
I mean, they can say it the waythey want.
(17:34):
Aboriginal title is the exclusiveright to land.
Okay?If you ask for Aboriginal title
and somebody says, here it is,should you be surprised that you
get the way?So, you know, it could have done
this other ways.
And so they could have said, we
want damages.
That's compensation.
Like we want money for breachingor infringing our title.
They could have asked for that.
(17:54):
That's what we want.
Just play devil's advocate.
They probably have asked for that.
This has just been the mostsuccessful thing so far.
Well, fair enough.
But you asked the question, what
were they seeking?Yeah.
They were very articulate andclear.
They want title.
Look, I agree with you.
There's other ways to do this, butthe point I'm trying to make is
(18:14):
they could have done itdifferently.
It's their right not to, I'm notquestioning the right, but to say,
well, we don't want people'sprivate property.
Well, you asked for title.
What did you think you were going
to get?to get?
So I guess the main issue with theoutcome is if you have Aboriginal
title, you cannot have fee simple.
Like is that the conflict?
I would say that's the lawcurrently in Canada.
Both fee simple and aboriginal.
So I've had a few people try to
correct me online by saying, well,you know, Tom has said fee simple
is an exclusive right to land.
There are car votes.
Of course there are car votes.
The crown can expropriate land.
It's like aboriginal title.
I get news for everyone.
It's not absolute either.
(18:35):
The crown can also.
justifiably infringed title, bythe way.
We might want to talk about thatbecause that's interesting.
But when I say they're bothexclusive rights, there are
caveats on both, okay?But they're essentially, if I say
you've got indefeasible title toyour land, that's against the
whole world.
That's as close to an exclusive
(18:57):
right to land as you get.
If I say you have Aboriginal
title, by definition, the courthas said it's not even crown land
anymore.
That's the court.
The Supreme Court of Canada issaying that.
So, How can you have two exclusiverights to one parcel of land?
You can't.
It's an obvious point.
Do you know, has anybody tried tosell a property on here or even
(19:17):
refinance one?Like, has anybody actually tried
going through the channels to doit?
So there has been some mediareporting.
there has been some mediareporting.
Yeah.
And I want to be very clear, you
know, to you guys that I've notbeen able to do due diligence on
the, you know, I want to be verycareful.
I think it's really important forme to be as accurate as I can be.
(19:37):
Yeah.
I've not done my own personal due
diligence.
There was one person, I know one
guy was saying he couldn't get hismortgage renewed.
I will tell you, I know thatMontrose has been public in the
media, and I have no reason not tobelieve them in terms of the
direct effects.
I think that was just this week,
in fact, that they were in themedia saying that financing and
(19:58):
lenders and all sorts of issues.
But here's what I can tell you.
I know of two examples, firsthandknowledge.
of two commercial purchases in theeight -digit range, okay, the tens
of millions, of two commercialparcels, two separate deals, not
on the 800 or the 1 ,800 acres,trying to be really clear, but
within the city of Richmond.
(20:18):
Both of those deals fell apart
because the purchasers walkedaway, and in both of those
instances, the only reason thatwas given was a lack of certainty
in British Columbia's land titlesystem and the Cowichan decision.
Now that's my firsthand knowledge.
So I can tell you that
definitively, you know, talking tocolleagues and know the firsthand.
Yeah.
I think if you take the media
(20:39):
reporting and what's out there andyou discount it by 50%, there
seems to be a lot going on.
I think if you err even on the
side of caution, and remember,we're only a few months into this.
Nobody's even heard this podcastyet.
That's right.
right.
I think from a financing point ofview, I've seen the media exposure
on that as well.
Hard to say, right?
Lenders don't really want tocomment on something that's not
solidified either, but in terms oflike the value or damage from the
resale, for sure.
(20:59):
Even just that lack of confidence
from a buyer.
Absolutely, that's going to affect
it.
Anyone suggesting this hasn't
affected the market.
Look, we could debate how much.
And I don't do what you guys do,right?
I don't pretend to be.
I just buy properties for myself.
And there is a buying opportunityright now in all of British
Columbia, which isn't great insome ways.
But anyone suggesting that therehas not been a direct and
(21:21):
immediate effect on the market,come on.
Like, look, we can debate howmuch.
Again, maybe about my pay grade todebate it.
Absolutely a direct effect.
I mean, the softening in the
market seems to be on a weeklybasis from what I'm observing.
And I'm not blaming that all.
And I'm not blaming Cowichan
(21:42):
Triarch First.
Also, I'm not blaming First
Nation.
I'm not going to put that all in
the decision.
I think that's unfair to put that
on our courts.
I would say the government of BC
needs to be much more bold on whatits next steps are going to be,
(22:03):
are going to be, though.
Obviously, we're super interested
in the real estate implications.
But what about things like
policing on that land or likebylaws?
Because I know like from our neckof the woods, when you get into
the West Bank First Nations, therecan be different laws when you go
into reserve.
Like, is this reserve land?
Yeah, it's not reserve land.
So reserve land is run under the
(22:24):
Indian Act system, which is astatute, a law.
Aboriginal title isconstitutional.
And here is what I'm going to bevery clear.
I'm going to use direct words fromthe Supreme Court of Canada.
If it's Aboriginal title, itbelongs to the First Nation.
It is no longer crown land.
Direct quote.
It's not crown land anymore.
The First Nation would have full
jurisdiction on that land.
(22:45):
For the most part, unless the
province and the federalgovernment wants to justifiably
infringe on that land.
And then in that case, the courts
have been very clear that theability to justifiably infringe on
Aboriginal title land, now I'musing direct quote, fairly broad.
But our governments don't likeusing that language because it
might offend someone.
What I would say to all of you, I
don't hesitate to use thelanguage.
(23:06):
I try to be respectful.
There are lots of indigenous
friends.
This is the legal toolkit we've
been given in this country.
That's the one tool government has
to balance aboriginal title rightswith the rights of the rest of us
in British Columbia.
So if you have a government going,
we'll never argue justifiableinfringement.
Never.
Well, now you don't have a
toolkit.
Do you understand?
That's the only tool you've got inthe toolkit.
(23:27):
Save and accept for an agreement.
And the way British Columbia
drafts its agreements, I wouldn'twant to be relying on their
agreements.
I said it.
It's true.
Will this be escalated at a
federal level?Like if the appeal, say, isn't
successful or if it is, does itjust continue on?
So in British Columbia, BritishColumbia, of the British Columbia
Supreme Court, that was thedecision in August.
Then we have the British ColumbiaCourt of Appeal.
That was a decision last week, forexample, on Nundrup and the
(23:49):
Drupalat Law.
That's the highest court in
British Columbia, is the BritishColumbia Court of Appeal.
What it says is final in BritishColumbia, subject only to the
Supreme Court of Canada.
In order for it to go to the
Supreme Court of Canada, leavemust be sought.
What does that mean?It's not an automatic right of
appeal.
In British Columbia, there's an
(24:10):
automatic right of appeal to theBritish Columbia Court of Appeal.
If you want to appeal from theBritish Columbia Court of Appeal
to Supreme Court of Canada, Imean, essentially you have to ask
the court.
And the court will go, yes, I'll
hear your appeal, or no, we won't,and here's the reason.
(24:31):
They usually don't give a reasonwhy.
They'll just say, we won't hearthe appeal.
And so do you think it would getto that level?
Do you think they would hear theappeal?
No, I've been doing this too longto know not to give a definitive
answer on that.
I think anybody giving a
definitive answer wouldn't beworth too much on that.
(24:53):
Look, this is obviously a really,really critical issue.
It raises fundamental issues aboutwhere we're going, not only in
British Columbia, but in Canada.
And, you know, my assumption would
be this would have a very goodchance of having leave granted.
But, you know, I've said thatbefore about decisions and I've
been wrong.
But just right now, like today,
looking at it.
(25:14):
I would say it's got a good shot
regardless of which way the courtof appeal were to go on this.
But this is the part of thechallenge with our justices.
We just don't know because we'vegot, you know, leave to appeal
first is what you'd have to see.
Do you know anything about the
situation in Kamloops?you know anything about situation
(25:34):
in Kamloops?What's happening?
Well, look, I mean, there's afocus on Kamloops that you've got
to claim over the city ofKamloops.
But yeah, I don't think peoplerealize that all of British
Columbia is claimed, right?That's my next question is like,
is there any?Yeah.
So, and again, with all duerespect to Kamloops and all my
friends in Kamloops, all ofBritish Columbia has either get a
(25:54):
formal legal Aboriginal titleclaim on it, or it has an
assertion of an Aboriginal titleclaim with the potential for
litigation to be launched at somepoint.
Now, this isn't a loan.
I mean, the province is covered.
covered.
But in countless, did they hear
what happened in Richmond anddecide to bring it forward to
court?Or like, why is countless in the
news then?I think people are just noticing.
I think, think people are justnoticing.
(26:15):
I think, look, I don't want tospeak for people, but what I take
from that is I think people arejust starting, which I think is
very good and healthy in ademocracy.
And for reconciliation, people aregoing, hey.
Isn't there a claim on their site?All I'll say is everybody needs to
take a look at the municipalboundaries because they're going
to find out that the entireprovince is claimed.
I don't care what city you're in.
You're going to have some form of
assertion of Aboriginal title onit.
(26:35):
I mean, there wouldn't be any partof the province I would point to
that doesn't have some form ofassertion of title or maybe a
settled treaty.
It might be a settled treaty area.
Just to be clear, we have treatyaid area.
Yeah.
And we have, of course, our modern
treaties of the Twasen Agreement,NISCA, for example.
(26:57):
But yeah, no, the province iscompletely claimed.
So I'm sitting in Vancouver.
It's got an assertion of average.
I live in West Vancouver.
It's got an assertion.
Kelowna, like everybody's got aclaim title.
What are we waiting for again?The decision?
No, we've already heard thedecision.
We're waiting for it to come intoeffect.
We're still waiting for an orderto be filed.
So we get the decision.
The way Canada works is you now
have to have an order from thedecision.
Then you can seek to appeal.
(27:18):
We're now, what, four or five
months in, no order.
Now, why the province hasn't
insisted on all the parties on anemergency basis, with maybe the
judge sitting at the head of thetable saying, we're getting in a
room, we're finalizing the orderas soon as possible within 30
days.
Why?
Because this is an emergency.
We have a public interest in
ensuring that British Columbia,all British Columbians, Indigenous
(27:41):
and non -Indigenous, have somepredictability in their justice
system, and we get this in frontof our highest court as soon as
possible.
I haven't ordered yet, and I don't
know when it's coming.
I suspect it's 2026 sometime.
This to me is the big issue isthere is a role for government to
play here in terms of leadershipand very disappointed with what
I'm seeing.
I mean, mean, with that said, I
guess, and this might be a toughquestion, but what would your...
(28:04):
decision have been like if youwere the judge or like what would
you like to see the outcome nowwhat i would have said is that the
granting of feasible interestextinguished any aboriginal title
that's what i would have said andit's possible and the crown should
go back to the negotiation tableeven if there isn't a direct legal
remedy in that instance the crownneeds to do the right thing and
(28:25):
negotiate a solution with whateverfirst nations one were to
ultimately conclude that title ori could have said outcome now what
i would have said is that thegranting of feasible interest
extinguished any aboriginal titlethat's what i would have said and
it's possible and the crown shouldgo back to the negotiation table
even if there isn't a direct legalremedy in that instance the crown
needs to do the right thing andnegotiate a solution with whatever
(28:48):
first nations one were toultimately conclude that title or
i could have said I find the titleexisted here, but it is
justifiably infringed by thegranting of a fee simple interest.
Crown, you owe them somecompensation.
This isn't rocket science, and Isay that with respect.
I mean, putting people's privateproperty on the chopping block
isn't reconciliation.
There, I said it.
Stand by it.
Sorry, but that's not all of us
living together.
And, you know, we are a settled
(29:08):
country.
I'm not moving from British
Columbia.
I got news for everyone.
You know, so we've got to learn tolive together.
And our Indigenous friends, and Ifeel very strongly about this,
have a right to justice.
This country voluntarily amended
its constitution.
And until we do other amendments
to our constitution, we're boundby that constitution.
I've got lots of Indigenousgovernments.
(29:28):
They have every right to pursuetheir claims.
I want to be very clear aboutthat.
It's a free country.
That's what makes our country
great.
There's an obligation on our
public governments to govern andto lead and not hide behind double
speak and triple speak.
I travel the country, right?
So we work across Canada.
What's the biggest issue in
Aboriginal law?And I have been giving the same
(29:51):
answer for two decades.
There is no problem in Aboriginal
law.
I mean, look, we got gray areas.
The Cowichan decision, don't getme wrong.
The lack of a long -termsustainable public policy
framework within which to dealwith these claims in British
Columbia is palpable.
And we all know it.
And I'll say it.
We all know it.
We all feel it.
How are we supposed to reconcile
with 200 constitutionallyprotected governments?
I haven't even talked about theMétis yet.
(30:12):
You know, we better come up withit as opposed to first past the
post.
So, you know.
A Haida agreement, great.
Well, what about the other 150
First Nations?Are they getting 100 % of their
asserted traditional territory?Don't they deserve reconciliation
too?So how are we going to reconcile
with 200 First Nations in thisprovince in a way that is
respectful to them and to theirconstitutional rights, but that
also leaves us with a provincethat is governable?
I'm not trying to be provocativeby asking that.
But that is the question.
I'm sorry.
That's the question.
And I think most British
Columbians, ultimately, I thinkthey know that is the question.
I've not heard anyone come forwardwith even a clue on what that
looks like.
And our public governments need to
be the ones to do it, not FirstNations.
(30:33):
That's not on them.
That's unfair.
It's not on our courts to do thatfor us.
It's not on industry.
It sounds like the lack of
accountability on that side hasnow led to, you know.
collateral damage for thoseprivate owners of that section.
I mean, you're closer proximity,like geographically.
Have you spoken to Richmondmunicipality or private owners?
(30:55):
Like, is there just outrage or arewe still kind of naive to the fact
that this is going to say to mixedbag?
say to mixed bag?British Columbia is an unusual
political jurors that people don'tlike to speak up here.
And I think what the concern is,is they're worried about what
they'll lose.
And I understand that.
To be clear, I get that.
(31:15):
But I don't think those same
people understand what's at stakehere.
This isn't just about Cowichan.
This isn't about, I'm not picking
on Cowichan tribes.
I've got nothing against the
Cowichan nation, by the way.
I wish them all the best.
I do, and quite genuinely, this isabout a much bigger issue of where
is our province going?And do we actually want a
(31:37):
functioning economy in thisprovince?
I'll put it another way to you,and this may be a bit more
provocative, but I'll say itbecause I've been trying to think
of how to put this.
We have one third of the First
Nations in our country in BritishColumbia.
Suddenly look at that and say,that's a blessing.
Are we lucky to have that manyrich cultures in one jurisdiction?
(32:00):
And I mean that quite genuinely,by the way.
I don't mean that in any waysarcastically.
But of course, there's a challengewith that.
We've got 200.
We've got one third of all.
And our province has only settledsome of the need for outstanding
treaties and the claims,relatively small proportion.
So do you want to know theperversity of that situation?
(32:22):
In terms of affordingreconciliation in a way where we
can still keep a health caresystem and have roads and maybe
someday buy some new ferries, wehave a need to have more mines,
more pipelines, more nuclear.
more forestry, more mining,
proportionately than any otherjurisdiction in the country.
I said it.
It's true.
How are we going to afford this?Again, this is the perversity of
(32:46):
the situation we find ourselvesin, that in order to meet the
obligations that our publicgovernment has, the idea of
weaning away from development,we're in the opposite situation.
We need to be developing at a ratethat exceeds any... other
jurisdiction proportionally in theFederation, because we have a much
bigger task in front of us.
Yes, Nova Scotia, Prince Edward
Island might have some outstandingclaims.
They are dealing with maybe adozen First Nation, two on Prince
(33:07):
Edward Island.
We've got 200.
The numbers don't work here unlessyou have the single most robust
economy in the country.
We've not come to grips with this
and we're doing the opposite, itfeels like.
So please challenge me on what Ijust said to you, if you think I'd
pray on this.
(33:28):
No, so you're saying to ramp up
the resource extraction and allthat to pay for basically...
Well, how are you going to do withthat?
Well, how are you going to do withthat?
So somebody needs to lay out to methe economic plan of how we're
going to reconcile with all 200plus First Nations and the Métis
in British Columbia and still...
be able to have healthcare,
education, roads.
Again, I'm not arguing against
reconciliation.
The opposite.
(33:48):
I'm in favor of reconciliation.
I'm a big supporter.
But if we don't have the honestdiscussion of, well, okay, we've
only got so much land.
Land is finite in this province.
How are we going to construct aneconomy that respects all those
individual indigenous governments?and still allows us to have the
capital and resources to doreconciliation properly.
(34:10):
Well, I don't think you have tobe, again, as I say, the country's
chipping the bag to figure out, wedon't have the answer to that
question right now.
All you have to do is look at the
BC economy, and we haven't evendealt with the majority of First
Nations yet in this province,remember.
They're not at the table.
They're not getting the attention.
So I hate to rip the bandage offlike that, but I think we're at a
(34:32):
point no one else seems to betalking about it.
So I'll say.
So obviously this is a pretty
monumental decision in the court.
And now you have people like you
and more and more people talkingabout, well, we just need to start
coming up with some money to justpay them to settle these old,
obviously the unceded land and allthat, all that lingering issues,
(34:53):
right?Is that kind of what?
Yeah.
I mean, I'm not sort of saying
just pay them.
What I'm saying is that capital is
finite.
There's only so much land.
We can only grow our economy sobig, but it better be bigger than
what it is today.
And by a significant margin, all
(35:16):
of us know how our standard ofliving has dropped.
I talked to a lot of British, Italked to a lot of Canadians.
Everybody is feeling it across thecountry.
I haven't met a British Columbianyet that feels like their standard
of living hasn't dropped in thepast decade.
That is not a partisan comment, bythe way.
(35:36):
I want to be very clear.
It's just as a statement of fact.
And there's a variety of reasonsfor that.
But, you know, I don't mind payingtaxes, but I want to see my taxes
do something.
We improve the downtown east side.
We're settling treaties with moreFirst Nations.
(35:57):
We're treating those FirstNations, not first past the post,
but if you've got bad drinkingwater, we actually have money.
to help those first nations we'repromoting economic development
we're getting jobs for britishcompanies we're proud to call
ourselves british colombians whichi am as opposed to a resident of
british columbia which i think ourgovernment wants us to call
ourselves now if economicallythere weren't restrictions like
(36:18):
obviously that's a huge a hugehurdle and there are no obvious
solutions but let's just take thatout of the picture for a second
from a time frame point of viewlike this case was historically
the longest in canada righteconomically there weren't
restrictions like obviously that'sa huge a huge hurdle and there are
no obvious solutions but let'sjust take that out of the picture
(36:40):
for a second from a time framepoint of view like this case was
historically the longest in canadaright potentially now that this is
like case study, we have aprecedent of it.
How fast do other cases come uplike this and are settled?
Like how, how fast doesreconciliation occur now that we
have something to work off of?If we negotiate proper
(37:05):
settlements, we negotiate propersettlements, I use the word proper
deliberately, by the way, propersettlements that could be done
more quickly.
I'm a big fan of the treaty
process.
I think the treaty process is the
ultimate objective in thisprovince.
That's my belief.
Why?
Because a constitution protectsthe rights and it's apples to
apples.
So when you say in a treaty, we
will protect feasible rights, thatmeans something constitutionally.
You say it in a contract and, youknow, so I would disagree that we
can't do it a little differentlyright now.
(37:25):
We could open this province up fordevelopment.
We should be California North.
I've always said that.
We should be one of the strongesteconomies on the planet.
I don't mean Canada.
I mean British Columbia.
We have chosen not to.
And the question then is, okay,
that's a choice I guess we'vemade.
Some people have made.
I certainly have a decision that
was up to me.
I'd be the opposite.
(37:45):
Why?So I could actually treat all
First Nations equally.
treaties in a way that would be
meaningful for First Nations sothat they go out and buy land on
the market.
I would not take people's private
property away.
I do everything possible to
protect people's private property.
These are the kinds of core
principles we need to land on.
But we're not there today.
But I would just say that that'sall within the power of our public
(38:09):
governments.
Look, there's examples on the case
law that are gray.
It can take a long time to move
through court.
But our governments today have a
whole suite of tools in front ofthem.
They choose not to use them.
And they will justify why they
don't.
And people will need to judge
whether they've been successful inthat.
I would say we have not beensuccessful.
I think we should use the toolkit,do it transparently, and make this
(38:34):
province prosperous.
for Indigenous and non -Indigenous
peoples as opposed to the first-past -post reconciliation.
That's what I call it right now.
You know, and I'm not going to
name the First Nations because Iwish them well and I'm happy to
see them doing well.
But we all know what I'm talking
about.
My Indigenous friends know what
I'm talking about because many ofthem aren't first -past -the
(38:56):
-post.
They're not the ones that get the
deputy ministers coming to visitthem.
We can't be running the provincethat way.
We've got 200 -plus Indigenousgovernments in this province.
They all deserve to be treatedwith respect, as do the non
-Indigenous citizens of thisprovince.
So we need to rethink andrecalibrate the way we've been
doing business.
And I'm not just blaming the Eby
and the Horgan governments onthis.
It would be unfair of me to dothat.
I'm not.
They've exasperated it.
They really have.
But this has been building for
three decades through successivegovernments in British Columbia.
of pushing off the big questionsand not coming up with the
ultimate goal.
So you think if we negotiated
(39:19):
earlier, it would have never gotto court?
Maybe not.
I mean, there's a right in this
country to go to court.
And that's simply the reality of
Canada.
The issue is what do you do when
you go to court?Do you go in there and vigorously
defend the simple title and say,we either do it this way or we
will amend the constitution toprotect private property rights?
(39:42):
To me, that would be leadership.
That's what's needed.
I don't think that's offensive toreconciliation.
There'll be people that disagreewith me.
They're entitled to disagree withme, but we need to have a civil
dialogue on this.
I guess for people that are
currently, guess for people thatare currently, I mean, we'll just
maybe move out of Richmond, sayKamloops or West Kelowna or pretty
(40:02):
much anywhere in the province.
Well, I think it's more of a
Kelowna issue than West Kelowna.
Well, I'm just thinking if
people... are nervous or cautiousor want like a tangible takeaway
from this to say, okay, here'swhat I can do to potentially
mitigate anything moving forwardto my fee simple.
(40:23):
Is there anything like, is itjust, Hey, I'm going to sell my
house and get out of the marketand vote for different, different
government.
Um, uh, so I'm not laughing at
your question.
It's just, I laugh.
laugh.
Yeah.
Don't worry about it.
I'm trying to be polite.
I said no. No, the reason I'mthinking is that, I mean, the
(40:43):
reality is the individual isalmost powerless in this
situation.
And this is why I keep calling on
our public governments, both theprovincial and the federal
government.
The federal government's got to
step forward on this too.
This is about the economy in
British Columbia.
And we are part of the federation
after all.
And so I don't know what to say to
(41:05):
that question.
I understand it's the core
question for your listeners.
So I ultimately believe there's
only one answer to this.
So here's my answer.
I ultimately believe that at theend of the day, indefeasible title
has to stay indefeasible as atitle.
Now, why do I say that?I say that because the alternative
is bleak.
(41:26):
It would mean that we would be the
only jurisdiction in any of theWestern economies.
Were your indefeasible titlesdefeasible?
I don't have to tell both of you,I know what you do and your
expertise or any of yourlisteners, what that means.
That is bleak is probably anunderstatement.
So I believe that ultimately thecourts will do the right thing and
say, no, no, no, no. This wasnever the intention of Section 35.
(41:47):
You know, reconciliation has gotto be a two -way street.
It's not a one -way street.
We know this already.
And in the meantime, it's a buyingopportunity as the market slumps.
I'm not blaming it all on theCowichan decision, to be very
clear.
I think we're already in a market
slump.
It doesn't help.
And I'll stand by that.
I don't think somebody can debate
(42:08):
that with me.
It doesn't help.
But I think there's opportunitiesright now.
And I think people have to makethat individual decision where
they're at.
I mean, I feel for people maybe
towards retirement that werewaiting to sell their home.
I'm worried to see what happens in26.
The lenders have not been vocalabout it.
I think in some ways that's a goodthing.
(42:29):
The problem is that the provincetakes that as acquiescence.
This is the problem in Britishgovernment.
We've had this for three decades.
And again, I'm not blaming the
current government alone.
I've been saying this.
nuance and subtlety with thisgovernment get you nowhere.
If it's not directed, that's theproblem.
Is there somewhere you can look upto see where there's a claim?
can look up to see where there's aclaim?
There's no one site, but on theGovernment of British Columbia
(42:51):
website under IndigenousRelations, they have their claims
page.
And you can see where First
Nations claim throughout theprovince.
And that's actually a greatresource.
The Treaty Commission is a greatresource.
And the Federal Crown IndigenousRelations website, that's where we
go, quite frankly, to get.
where the claims... I feel like
there's an app opportunity herefor someone to fire up an app that
you just type in your address andsee how many...
Unfortunately, that's a good idea.
like there's an app opportunity
(43:12):
here for someone to fire up an appthat you just type in your address
and see how many... that's a goodidea.
I wish I didn't have to say that.
That's actually a good idea.
I mean, the problem is, though, islook, we can live with assertions
of title.
I want to be clear.
We've lived under assertions oftitle.
First Nations have a right toassert title.
(43:35):
The issue is what is our publicgovernment doing to have a game
plan on how we're going to get...
to ultimate reconciliation.
We don't have that and we haven'thad it and we need that and we
need it pronto and we needleadership statements from our
government on what they're goingto do to protect our markets.
(43:57):
And it's not enough to say, well,we're going to file an appeal.
Yeah.
Yeah.
Great.
Good.
We're in an emergency situationand I think it demands an
emergency action.
I mean, this is why we have
governments is that when we havean emergency, I don't know what
you guys are feeling, but, youknow, I talk to a lot of people.
I meet a lot of people every weekacross the country.
(44:18):
Lately in British Columbia, I livein BC, but I've been meeting a lot
of people in BC lately.
There's a hungry need for
leadership right now.
I think people would welcome
really clear, crisp leadershipfrom Premier Eby right now.
I mean, very genuinely, eventowards him.
We need that right now in thisregards which party you vote for.
There's a hunger right now.
(44:38):
for crisp, clear leadership and
guidance about where this provinceis going.
That would be welcomed, I think,by everybody.
And I think that answers a bit ofthe earlier question, except then
it's up to people to call theirMLAs and go, please give some
clearer guidance.
What should people be looking out
for?Like, what's the next step?
(44:59):
Like, what's the next thing that'sgoing to hit the news?
We are waiting for a decision fromNew Brunswick.
Very different case, butultimately dealing with the role
of private property in Aboriginaltitle.
That decision is coming very, verysoon.
So, and that'll be from anappellate court.
Remember I said the lower courtand the court of...
Well, in New Brunswick, thesuperior court is the New
Brunswick Court of Appeal.
The next court after that is the
(45:21):
Supreme Court of Canada.
That decision is coming soon.
Second, the Cowichan decision,waiting for the order to be
settled.
And remember, Montrose has a
motion to be added as a party tothat.
And so I believe that motion needsto be heard first.
I believe I could be wrong onthat, but we need to settle that
order in Cowich before we can betalking about an appeal and
(45:41):
interveners and all that business.
So that's what I'd be watching out
there.
My law firm is castles
com, C -A -S -S -E -L -S.
People type in my last name,
Isaac, I -S -A -A -C.
They'll get my bio.
We produce a fair amount ofmaterial.
You can add your name to ourmailing list.
And look, I really thank both ofyou, by the way.
I mean it very genuinely in beingable to talk about these issues.
(46:03):
I think we need to encourage civildialogue, respectful dialogue to
our Indigenous friends and to ournon -Indigenous friends.
So we've got to work our waythrough this.
But we need to start talking thetruth about how we're all going to
live together and have aprosperous, it's one thing to live
together, but if it isn'tprosperous and it's not attracting
capital.
It's not going to be a very nice
living arrangement.
You know, like living with a
spouse, no income coming in.
It can be a little pesty.
Nice when there's lots of cashflowing around.
Well, no, but it is.
We need to start looking at our
(46:25):
province that way.
And look, I get there's tension on
our environment and that, but welive in a capitalistic world and
First Nations also and Métis alsohave a right to economic
sovereignty.
So we better start figuring this.
this out so but thank you by theway i really appreciate the
opportunity i hope i wasn't tooobtuse i tried to use a bit more
(46:45):
plain language that i the doctorbut thanks to both of you oh you
were awesome yeah reallyappreciate it we'd love to have
you on in the future once yeah wekind of know more about this
obviously you were awesome yeahreally appreciate it we'd love to
have you on in the future onceyeah we kind of know more about
(47:06):
this obviously
Popular Podcasts
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
The Bobby Bones Show
Listen to 'The Bobby Bones Show' by downloading the daily full replay.