Are Aboriginal Title Lands In Richmond And Haida Gwaii Exempt From BC Laws?

There has been a lot of talk lately about the BC Supreme court's finding of aboriginal title over approximately 800 acres of land in Richmond (much of it owned by private property owners) as well as some public roads. The attention has focused mainly on how this could have happened without proper notice to the landowners, and without them having a right to be heard by the court before the decision was made.

A separate issue that does not yet appear to be receiving significant public attention relates to the question of whether provincial laws will or will not apply to these lands. Is it possible that provincial laws like the Local Government Act or the Property Transfer Tax Act simply no longer apply?

What about the Trespass Act, the Motor Vehicle Act, the Environmental Management Act or the Agricultural Land Reserve Act. The list goes on.

Surely this is a silly question, right?

Wrong.

Supreme Court of Canada Guidance on How to Decide What Laws Apply on Aboriginal Title Lands

In 2014 the Supreme Court of Canada issued an important decision in Tsilhqot'in Nation v. British Columbia¹ dealing with the question of when provincial laws apply on aboriginal title land. While the court held that laws of general application can apply to aboriginal title, that principle is limited in certain ways. The Court stated, "[107] Whether a statute of general application such as the Forest Act was intended to apply to lands subject to Aboriginal title — the question at this point — is always a matter of statutory interpretation."

This means the first step is to look carefully at the law and see if it suggests the legislature wanted it to apply to aboriginal title land. This is of course a rather creative exercise since most statutes were drafted before the legislature even turned its mind to aboriginal title at all. But in the Tsilhqot'in case the Court nonetheless carefully reviewed the Forest Act and said "I conclude that the legislature intended the Forest Act to apply to lands under claims for Aboriginal title, up to the time title is confirmed by agreement or court order."

So we now know the Forest Act does not apply to aboriginal title lands after aboriginal title is established. But what about all the other laws of BC? There are hundreds if not thousands of them.

And what if the legislature did intend a particular law to apply to aboriginal title lands? Is that the end of the story? Unfortunately not.

Even if the legislature did intend for a law to apply on aboriginal title land, one must then consider whether it constitutes a "meaningful diminution" of aboriginal title. What on earth does that mean? Well, the court offered this guidance:

Then if there is a "meaningful diminution" the law will only apply on aboriginal title lands if it meets the "justification" test. Here is the Supreme Court of Canada's guidance on that in Tsilhqot'in:

The third element of that test – Crown's fiduciary obligation to First Nations – in turn requires, among others things, assuring the incursion is necessary to achieve the government's goal (rational connection); that the government goes no further than necessary to achieve it (minimal impairment); and that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interest (proportionality of impact). (Tsilhqot'in, para. 87)

If you are wondering how the average person can possibly know whether a law like the Motor Vehicle Act applies on the Richmond aboriginal title roads, you are not alone. Maybe the answers will come from the courts on a law by law basis, but how many more court cases – or hundreds of cases – would that take?

How Did the Government Deal With This on Haida Gwaii?

As many people are aware, the BC government recently signed an agreement with the Haida Nation acknowledging aboriginal title over the entirety of Haida Gwaii, including private property. Given that that agreement followed lengthy negotiations, and was implemented through supporting legislation, one might assume that these issues have been tackled on Haida Gwaii and people now know what laws apply where and to whom.

In fact, that is not the case. Section 4.4(2) of the Haida Nation Recognition Act states, "Enactments of British Columbia in relation to Crown land continue to apply in relation to land that is held by the Haida Nation in aboriginal title." [emphasis added]. But there is no similar section specifying what BC laws apply on all the private lands in Haida Gwaii over which aboriginal title was acknowledged.² Instead, the private landowners must settle for this in s. 4.4(1):

So, do provincial laws still apply on private lands on Haida Gwaii? Well, if you want to know the answer to that, just look up each possible act on the internet, consider whether the legislature intended it to apply there, then (as necessary) assess whether there is a meaningful diminution of the Haida title, whether the Crown has a compelling and substantial reason to do so, whether it has duly consulted the First Nation on it, whether the incursion is necessary to achieve the government's goal, whether it goes further than necessary to achieve that goal and whether the benefits that may be expected to flow from its application are outweighed by adverse effects on the Aboriginal interest.

This is obviously not an easy task for any citizen to do, and so it is challenging to square with the Supreme Court of Canada's own prior statements that a "foundational" aspect of the Rule of Law is "positive laws to preserve order in society".³

And this is of course not the only legal concern with the Haida model.⁴ Beneath the surface likely lie other risks and implications that have yet to come to light – ones that could reshape the legal and practical landscape in ways we cannot yet fully anticipate. Despite this, the Haida agreement was unusually confirmed through a B.C. Supreme Court "consent order" (supported by BC and Canada), just one month after the Cowichan Tribes decision came out.⁵ While the Haida Nation Council issued a media release⁶ BC did not, apparently citing a communications foul-up.⁷

Conclusion

While there can be differing and legitimate views on how aboriginal title fits within the broader goal of reconciliation, it is hard to imagine anyone who would say reconciliation will be enhanced by creating pockets of the province where nobody really knows which laws apply. Yet that is exactly the outcome of the recent B.C. Supreme Court Cowichan Tribes decision (as it stands today) and the government's 2024 Haida Nation Recognition Act, which the Premier has referred to as a "template". These are serious issues that warrant much more attention and discussion before BC seeks to extend the Haida template anywhere else.

The real solution of course is this: BC needs to conclude negotiation of comprehensive treaties to resolve all these issues – which a full treaty does in fact do. Because litigation and piecemeal "non-treaty" agreements like the Haida one will inevitably fall short of the certainty and clarity British Columbians desire and require.

Footnotes

1. 2014 SCC 44

2. There are also constitutional questions about whether a provincial statute can – even where it tries to do so – make provincial laws applicable to aboriginal title lands.

3. Ontario (Attorney General) v. G, 2020 SCC 38.

4. For our previous comments on this issue see More Than Meets The Eye: The Legal Implications Of British Columbia's Agreement To Recognize Aboriginal Title Over Haida Gwaii –

Indigenous Peoples – Canada and Indigenous Law Update: What the B.C. Natural Resource Sector Should Know About "Non-Treaty" Agreements – Lexology.

5. See, for example, B.C. Supreme Court rules Haida Nation has sovereignty over Haida Gwaii – Today in BC.

6. Press Release from the Council of the Haida Nation – Court Declaration of Haida Title — Council of the Haida Nation.

7. B.C. NDP again leaves public in the dark on an Aboriginal title case | Vancouver Sun.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2025