Vaughn Palmer: David Eby's hidden agenda on display when he persuaded a court to lock in Haida Aboriginal title

VICTORIA — With election day approaching, it is worth recalling the extraordinary step that Premier David Eby took last year to preclude one possibility if he were to lose power to the B.C. Conservatives.

On Sept. 5, 2025 the Eby government helped persuade B.C. Supreme Court Justice Christopher Giaschi to entrench recognition of Haida Aboriginal title in the Canadian constitution.

The New Democrats had already recognized Aboriginal title over Haida Gwaii in an accord and legislation. Now they joined the Haida and the federal government in asking the court to affirm it under section 35 (1), the Aboriginal rights clause of the constitution.

For as B.C. government lawyer Brent Olthuis told the court that day, “If the legislature makes a law, it can unmake a law.”

The lawyer for the Haida was even more explicit in explaining “how it is that Canada and B.C. and the Haida Nation decided that we should come to court and sort this thing out.”

“There are agreements in place, but agreements can be revoked,” said David Paterson. “There is provincial legislation in place, but legislation can be repealed.

“I don’t suppose you’ve followed the public discussion on this,” Paterson added in an aside to the judge on the political aspect of the case.

“There are people who would like to repeal this legislation. There are people who would like to see this arrangement not succeed. Fortunately, I think they’re a small number, but nonetheless it’s a consideration.”

The then-Conservative leader John Rustad argued that private property rights could be undermined in the long run by blanket recognition of Aboriginal title over Haida Gwaii.

The Haida maintained that they would respect private property. Yet the Nation and its government partners also wanted the court to eliminate any doubts about the title to Haida Gwaii.

“The relief that we’re seeking is constitutional protection of the Aboriginal title of the Haida Nation,” said Paterson. “It is really the linchpin that provides that we won’t be here 20 years later arguing whether or not we have title and whether or not the province can revoke its legislation.”

Provincial and federal recognition of Haida title was itself “groundbreaking” and “unprecedented in this country’s history.

“We need to — if I can put it ineloquently — tie a ribbon around this agreement to ensure that it does obtain constitutional protection. … But we can’t say for certain without a declaration from this court that we’ve actually achieved that end.”

Before the day was over, Justice Giaschi tied the ribbon, declaring that “the Haida Nation has Aboriginal title, recognized and affirmed under section 35 (1) of the Constitution Act, to the terrestrial areas of Haida Gwaii.”

The Haida issued a statement celebrating a “historic day” in the life of their Nation.

Neither the provincial nor the federal government said anything. Not about the reasons for joining the Haida in court, nor how the declaration was now beyond the reach of a change of government.

Indeed, the only reason I can quote what the lawyers argued in court was thanks to a transcript, provided to me by one who shall remain nameless.

I asked Indigenous Relations and Reconciliation Minister Spencer Chandra Herbert why neither he nor his ministry had announced the provincial role in supporting the Haida in court.

He replied that he was not told beforehand about B.C.’s intervention in the case and only learned it after the fact. Believe it: Eby’s own ministers are not always told what is being done in their name and why.

No less revealing was the response from Attorney-General Niki Sharma when I asked her about the shroud of secrecy.

She said putting out a media release would have been “a waste” of time and resources because B.C.’s appearance was just about “tying up loose ends.”

Entrenching Haida title in the constitution to ensure the Conservatives could not undo it if they won the next election? That is some loose end.

This is the same Eby government that on the eve of the last election signed a $100 million cash and land deal with the shíshálh Nation on the Sunshine Coast but kept it secret until after the votes were counted.

Recently, Northern Beat published the NDP plan to eliminate compensation for holders of timber tenures in the transfer of some 400 parcels of Crown land to Indigenous nations.

The Conservative platform pledges an end to the secrecy and coverup that undermines public support for Indigenous reconciliation.

“We will publish maps and information about active claims, negotiations, legal actions and agreements affecting public or private land before they become binding.”

We will see if they would live up to it, should they take power.

But they could start by disclosing any surprises that turn up in any period of transition between the outgoing and incoming governments.