225. Khelsilem: Is Reconciliation Scaring Homeowners? The Cowichan Decision Explained

Chief Aaron Pete sits down with Khelsilem to break down the Cowichan decision—why it’s ultimately a property-rights case tied to Aboriginal title, what it does (and doesn’t) mean for private homeowners, how Premier David Eby and the BC Conservatives have responded, and what a more mature, public-facing path forward on reconciliation could look like.

Transcript

SPEAKER_01 0:00

I'm hoping we can start with the Cowichan decision. It is by far the most explosive decision. Could you explain the decision for people who might not fully understand it?

SPEAKER_00 0:08

At the heart of it is it's a property rights case. Aboriginal title is a recognized collective right that belongs to Indigenous peoples in Canada.

SPEAKER_01 0:19

Everybody's worried that their fee simple lands are now in question. What's your reaction to people with those types of points?

SPEAKER_00 0:27

None of the parties are saying if you elect me, I will overturn private property rights and hand them over to First Nations.

SPEAKER_01 0:33

What are your comments on the BCNDP and David Eby's response to this decision, how it's been handled, uh, and the backlash?

SPEAKER_00 0:40

It's a very like public relations kind of strategy as opposed to a leadership strategy.

SPEAKER_01 0:45

There's some people who say reconciliation is a forever journey we'll be on for the next 300 years, and then there's some that go, no, let's set some benchmarks and let's get to work and let's show that we can get stuff done again. Where do you land on that spectrum? Kel Salon, it is an honor to sit down with you. There are very few individuals who operate in the space that we do. Uh so I'm excited to speak with you. Would you mind first introducing yourself for people who might not be acquainted?

SPEAKER_00 1:15

Yeah, uh, my name is Carl Salem. I'm uh from the Squamish Nation. I was elected to the Squamish Nation Council for seven and a half years, first as an elected council member and the appointed spokesperson, and then served four years as the chairperson for the Squamish Nation Council, which is equivalent to a chief.

SPEAKER_01 1:32

Fantastic. I'm hoping we can start with the Cowichan decision. It is by far the most explosive decision. And I did a story on it, as you know, where I covered it in a monologue where I tried to break down and understand the issues, and I actually used your work to help inform the perspective of that region, right? Like I wanted to make sure I had kind of the federal understanding, provincial, uh, but also those local communities. And I know it's it's more on Musqueam's territory, but I'm sure that Squamish has some traditional territory in that same area. Would you mind walking me through what it was like to write that article uh at the beginning? I don't think the reaction was as strong. What was it like to digest the decision? And could you explain the decision for people who might not fully understand it?

SPEAKER_00 2:14

Yeah, I it is it is a landmark decision, you know, in terms of the jurisprudence around Aboriginal rights and title cases. It is a continuation of the jurisprudence goes back all the way to the Calder decision, all the way through through things like the Sparrow decision, the Dalgamuk decision, Haida, Tilkotine, and then this this case. And I wrote the article after reading the decision. It I was also anticipating the decision for a long time, because it was well known, I think, amongst Coast Salish communities around the Fraser River and on the island, that that this case had happened, that it would be, it would, it would be an interesting outcome regardless of which way the courts decided to go. And I think as the reaction came out and as the rhetoric started to pour, I think from the political angle, I felt that it was important as somebody who understands these issues in a very practical sense, not just as a like I'm not a trained lawyer, I don't come from a legal background. I do come from a policy background, I do come from a negotiation with the crown background. So there was a part of me that could understand both what the case meant on the decision itself, but also what the case meant in terms of practical realities. And I wanted to offer a pathway, and part of this is my teaching background. I think I used to, like I used to be a language teacher. I taught at Simon Fraser University in an Indigenous language immersion program, and I used to really enjoy teaching. So part of me always feels that there is a way to connect with people who want to learn and an effective way to help educate and help to inform and help to bring people along. And so my attempt was to try and do that because I felt like that wasn't really necessarily happening. It's hard to do that in very short articles or short news pieces or sound bites on radio or TV. And I had hoped to try to provide a really solid understanding of what the case meant. To the question of what does the case actually mean? The way that I often summarize it to people, and I'm about to explain it quite a bit since then, is it at the heart of it is it's a property rights case. Aboriginal title is a recognized uh collective right that belongs to Indigenous peoples in Canada. It includes all these other components that the courts have since clarified because there were questions around does it mean this or does it mean that. It includes, for example, an inescapable economic component. That's a term that the courts uh defined it as. It includes the right to benefit materially from those lands if there is some sort of some sort of benefit. It includes the right to have an influence over decision-making which might happen over those lands. And so the Cowichan brought a case forward largely due to historical grievances against the crown, stretching back over 150 years, where there were promises made by the crown, where there were transactions that were supposed to happen and didn't happen, or there were transactions that happened that largely benefited the sort of colonial officials who were presiding over the land management system for the province at the time. And then deeper than that is there was this oral history evidence piece of it, which is that because the courts have defined the test to prove Aboriginal title, you know, you have cases like the Haida case where it set out the criteria for proving Aboriginal title, but didn't yet do it yet towards an Aboriginal title case. And then you have the Chalkotan case come along and they use the test that was established in the Haida case, and they get proven title over 50% of what they claimed as their territory. And then you have the Cowichan Alliance, this group of uh six First Nations from Vancouver Island who are descendants of the historic Cowichan nation, as it was referred to, or Cowichan tribe as it was referred to in colonial documents using the Chilcotan case to now to test it on a very specific small parcel of land. Small, I say, relative to the entire territory that is largely claimed by the Cowichan Alliance. And part of that test, part of that criteria that was established by the courts is that you have to prove exclusive use and occupancy to that territory. So in this case, they had to submit a significant amount of oral history evidence. There were other parties to the case, like the Cowichan and like Sawasin First Nations that had challenged some of that oral history evidence, but on the balance of everything that was submitted, the courts largely agreed with the Cowichan's position that they had exclusive use and occupancy to this small area within Richmond, and that there were infringements on their rights, their property rights, by the Crown. Some of that included the Crown taking some of their Aboriginal title lands, selling it off to private interests. Those lands that were formerly crown lands have now become private fee simple lands. And it was really interesting in the case is that they also acknowledged that there was a lot of like really blatant corruption going on in the early days of the colonial sort of land surveyor system, where the the official, the government official that was in charge of these lands and of that was supposed to transfer them into Indian Reserve lands, actually worked with a real estate agent to set up numbered companies, sold the lands to essentially himself, and then waited for the lands to increase in value and then profited off of the value increase later on. And that was that was originally like back when the lands were first sold off by the crown. So the courts largely came across all of this facts. They, like every other Aboriginal title and rights case, they'll largely acknowledge what they think are the facts, and then they'll sort of direct the parties, the the crown essentially, with the relevant First Nations to then negotiate. And the courts have said uh repeatedly that reconciliation is or the purpose of section 35 of the Canadian Charter of Rights and Freedoms, which includes the section that acknowledges and recognizes Aboriginal rights and title, that the purpose of that section is reconciliation, reconciliation between the Crown's interests and the First Nations title interests, that the Aboriginal title pre-exists Canada, and that it's the underlying title to the land is held by first First Nations who can prove title or assert title, and that the purpose of Section 35 is reconciliation between these two interests, and that the path to uh achieve reconciliation is through negotiation, and that there's an acknowledgement that there will have to be give and take on both sides, both by the crown and by First Nations, in order to reach a mutually beneficial agreement. And so the courts largely said in this case, we spell out the facts, we think the land belonged to the Cowichan, we think the crown had erred and breached their rights, and thus we direct the parties to negotiate some sort of settlement or some sort of reconciled agreement that addresses all of the issues that have been at play here, and that there might have to be some sort of compensation towards the Cowichan for lands that have been lost as a result of government action that are part of the Aboriginal title lands that have been recognized, but are now fee simple lands, and that there is a duty or an obligation on the crown to reconcile that theoretically through some sort of compensation or restitution of some kind. It could look like lots of different things, but basically directed the parties to negotiate as a result of that. Of course, since then there's been a lot of interpretation of what this means in terms of precedence for BC and for Canada, whether it's a threat to the British Columbia economy or to private property owners. But at the heart of it is like I said at the beginning, is that it's a property rights case where there was property that was owned by a group. That property was confiscated by the government, and now that that group has taken the government to court and won here, and it'll probably be appealed to the Supreme Court of Canada eventually, but it that's kind of where it's at now.

SPEAKER_01 10:00

I want to get into the minutiae and get your thoughts on more of the technical pieces, but I would like to linger a little bit on the reaction to the case because I think that may have been the biggest turning point in reconciliation. In my humble view, from 2015 to where we are today, we've had some of the largest investments provincially and federally into addressing the gaps between First Nations and everyday Canadians. And we're starting to see the tides turn on this and governments who are still liberal and NDP, NDP provincially, liberal federally, starting to look at the file again. There's discussions of uh reviewing DRIPA and what that's going to look like. The reaction, what what is your feeling about it? Are Canadians and British Columbians on the wrong track? Are they just misunderstanding? What's taking place when there's this gap?

SPEAKER_00 10:49

Well, it it's a good question because I think that there is, I often frame it as after the Truth and Reconciliation Commission re-released its final report and released the findings into, you know, the trauma and the harms that were caused as a result of the Indian residential school policy, there was a little bit of this Canadian sort of moment where many Canadians for the first time were learning about the tragedy of the Indian residential school system. And there was a significant amount of tension. There has since been a significant amount of work to increase knowledge and education of that history. So I think that you saw this rise of sympathy and support for reconciliation or the plight of indigenous peoples, as it's been called. And I think that that's post-2008. You start getting into the contemporary era in the last, say, couple of years. We're witnessing, you know, significant increases in inflation across the board for everyday working Canadians. You're seeing a lot of volatility in the economy and slowdown of the economy, slowdown of industries across BC and Canada. And you're seeing this challenge of strained uh government budgets to invest in either social programs or in the economy. Or you see a lot of Canadians, I think everyday Canadians, ordinary Canadians, struggling financially because wages haven't kept up and costs are going up and things like that. So I think it's understandable that when that happens, you know, these other kinds of social issues that aren't hitting your wallet book start to fall to lower in the list of priorities. And I think that there is a moment that is happening right now where when people feel a sense of panic or stress or anxiety, they look for solutions. And anybody offering solutions, they they'll they'll throw support behind because anything at that point is going to be helpful theoretically than staying with the status quo. So what we're seeing then is we're seeing this sort of reaction, I think, by political leadership that is actually almost a return to the status quo in British Columbia and in Canada. You go back to the 1990s, the BC NDP government in the 90s was not a friend of First Nations, it was not a supporter of Aboriginal rights and title, was not a supporter of the ideas that we were fighting for as collectively as a people. And and then you had the rise of the BC Liberal Party, and and part of the rise of the BC Liberal Party was Gordon Campbell, you know, who was a Vancouver mayor at the time, running on a campaign for the leadership of the BC Liberal Party that was explicitly questioning things like Aboriginal rights and titles, specifically questioning the Nishka Treaty Agreement, specifically calling for a serious attack on these kinds of ideas, became the leader of the party, won the blowout election against the BC NDP, reducing them to two seats, and then continue on this sort of trajectory of questioning the legitimacy of the Aboriginal rights and title sort of uh topic that led to the famous infamous referendum on the question of Aboriginal rights and title issues. And then, you know, Gordon Campbell ended up doing a 180 after that. And it was through the success of court victories that came where I think that there was a reckoning with the fact that that First Nations in BC are the architects of certainty. There is a duty, a legal, legal requirement by companies and the crown to consult and uh cooperate with First Nations. And so First Nations are interested in creating win-wins, and we've seen that, and there's lots of cases of that, both economically and socially. But the the use of First Nations as a bit of this red herring to attack, to question, to sort of hold up as a boogeyman within politics is actually something that's happened before. And there's the rhetoric and there's the sort of the rhetoric of treating this as sort of some something that people should be afraid of or something that people should be scared of. And then there's the reality, which is that when you want to actually do the hard thing of building something better for our communities, building something better for our economy, you have to work with people. You have to work with First Nations, you have to work with industry, you have to work with government. And none of this is actually going to help make things easier to work together. It's just creating a heightened environment where it's a lot of uh fear and anxiety, as opposed to, you know, the kind of leadership that I would like to see, which is more of a thoughtful, caring approach that helps bring British Columbians along to explain what this really means, because there's there's a lot of misinformation and a lot of lack of information. And we're not seeing that from the BCNDP either. They're they're kind of taking these losses that they are self-inflicted by their own failure to implement their own commitments. They made a commitment to DRIPA, they're failing to implement it, they're failing to engage the public on it, they're failing to actually believe in it because they're so caught up in the politics of where's the polling at and what are we being attacked on, and how do we sort of get a one-up over our political opponents as opposed to, you know, the really hard work of governing, which is doing things that are actually going to benefit British Columbians.

SPEAKER_01 16:05

That is well said. I agree with you and appreciate you pointing out I think some of those pieces around where British Columbians and Canadians are, and I think people globally are, which is there's significant instability. And I do think when in 2015 we had balanced budgets, we had governments that were not doing great on every file, but we had a stable economy that was reliable, and people can start to think about those types of issues. So I appreciate you acknowledging that piece. When it comes to the fears around private property rights and people coming after them, that has been the headline. What is your response? I'm sure you're getting asked this a lot on TV and in news stories. Everybody's worried that their fee simple lands are now in question and maybe they need to move to somewhere where it's more stable. What's your reaction to people with those types of points?

SPEAKER_00 16:55

I think it's I think it's a perfectly reasonable reaction to be afraid of those things, partly because the the conversation has has gone to that point where there's there's a this instillness of of fear. There is a reality, which is that much of the work of reconciliation is incomplete. Much of the work of actually reconciling these competing interests is incomplete. There's a lot of work to do. And the reason why we're in this place today is because crown governments have refused for decades across the political spectrum, refused to deal with these issues. And so they keep getting dragged on and on and on. And what's happening now is I think that there is a real rebalancing of power and jurisdiction and decision making. You know, there were attempts to try to address this with uh the Charlottetown Accords and the Meach Lake Accords when there was attempts to try and further amend the Canadian Constitution to address the role of First Nations within the Canadian pluralistic structure, but you know, those failed unfortunately. So we're we're dealing with the reckoning of decades of denial and and and delay. The the truth is that the courts have acknowledged that there was a property theft by the government from the Cowichan. They were explicitly acknowledging that some of those lands have now become fee simple lands and that there is an obligation on the crown to reconcile those with the First Nations. None of that was speaking to an overturning of specific like of the uh fee simple property regime. None of that was speaking to anybody coming after anybody's individual property. It does mean that the government will have to recompensate in these cases where there might be an issue at hand. But the reality is, I think, both politically, you know, you if you're a property owner, what protections do I have? Well, one is politically, there's not a single political party that is necessarily running on or campaigning on or wanting to accomplish the things that people are scaring you about, right? None of the parties are saying, if you elect me, I will overturn private property rights and hand them over to First Nations. They're all saying, I'm here to defend private property interests and the private property fee simple system. We have to accomplish reconciliation, but I'm here to defend and protect those things. The courts as well, generally, if you look at the history of Aboriginal title cases, from the landmark decisions that set precedents all the way down to the individual decisions that sort of First Nations might bring forward. The courts are also, they're, they're, they have their own principles where they have not necessarily issued, you know, blanket changes, wholesale changes or systemic changes across the board that upend everything. They've largely approached things of incremental approaches that required a careful negotiation. They've been very careful not to try and create a system a situation where it would upend anything other than to clarify the relationship between the Crown and First Nations. So I think that there's also just, if you look at the trajectory of those things, you look at the history of those things, the courts aren't going to necessarily overturn everything on a moment's notice. And the government's also going to be there to defend. So at the end of the day, what you're left with is First Nations having to deal with a government that says, look, some things are off the table. We're never going to cross that line, but these things are on the table. And that's where First Nations and the Crown have to work through what is the art of the possible within those negotiations. And sometimes that might look like, you know, it could look like a cash compensation. It could look like a transfer of other crown lands that the crown still owns that are maybe in a different location. So, like maybe for the Cowichan, there are crown lands on Vancouver Island that the crown says, look, we can't give you back those lands that we sold off 100 years ago that are now fee simple interests, but we have other lands that we still control that we could transfer to as compensation for that. It could look like those kinds of things. You know, an MST, Muscov Squamish and Slavages, we've talked about what does Aboriginal rights and title mean and what does title mean in the context of all the fee simple properties that we have here. You know, another idea that I've suggested that might come from these negotiations is we have if the Crown says, well, we don't really have the resources or the financial capacity to pay First Nations for all of the lands that have been taken, that would be a significant bill on the public dime. We don't have that right now. And so First Nations might be, okay, we hear you. We understand that. So what how as an alternative then, instead of asking for one lump sum cash compensation, what we're gonna ask for is maybe a slight increase on the provincial property transfer tax. And that increase is gonna be transferred to nations on an annual basis that's gonna go towards supporting our economic growth as a First Nations so that we can be self sufficient to provide health care, elder care, education, and other social programs for our community. And that that's the new fiscal relationship that we're gonna negotiate. And that's reconciliation. So there's different ways that this plays out. I don't think that it'll ever play out in. In the sense of it coming after anybody's individual property or upsetting anybody's individual property rights. It's really geared towards what is the government going to do with what the government controls and what are First Nations going to do with what they're willing to accept as a part of that.

SPEAKER_01 22:15

Thank you for sharing that. In response, you commented a little bit on the government's failures. One of the pieces, from my understanding, is that David E.B. had spoken to the court, knew about the decision, but had assumed that something else would be coming as a result, and he was caught in a press conference saying we we didn't think it was going to go in this direction or it was going to have this implication. And then their communication strategy and response, I think, was just terrible. Like the reaction was really negative and really concerning, and the government's response wasn't good. What are your comments on the BCNDP and David Eby's response to this decision, how it's been handled, uh, and the backlash?

SPEAKER_00 22:55

I think it's been unfortunately a very big failure of leadership by the premier, because I think, you know, I look back at when we had John Horgan as the premier for the BCNDP, and there were issues around reconciliation, around title and rights issues, around First Nations and the economy. And you know, the old growth disputes and blockades and protests were an example of that. And I remember John Horgan, you know, he had built a very effective relationship, I think, with the the press gallery that would cover his speeches or press conferences. And I watched many of them and I remember him taking in the time to say, look, these are complicated, complex issues, and I'm gonna I'm gonna explain to you my understanding of them and how I think we as British Columbians can work together to get to a positive place on this, and he would sort of be an effective communicator for the public that largely might not understand these issues, and for the premier to help bring people along. I don't think that we're seeing that necessarily from the current premier. I think we're seeing a bit of a very political angle, a strategy angle of like, oh, I have to appear to be saying the right things because that's what's going to play well in the polls. I have to be conscious of how I can be seen as this thing. So it's it's it's a very like public relations kind of strategy as opposed to a leadership strategy. And, you know, I think that unfortunately, it's it's the public that has been really, I think, shortchanged and lost out because these are important conversations, they are meaningful to a lot of people. It's it's a long time coming. And we we're not just seeing the kind of leadership that I think we could see coming from the BCNDP around bringing the public along, helping the public understand these things, showing the pathway forward. And at the end of the day, you know, the courts said in the couching decision, you know, I suspend my order for 18 months so that I can give time for the parties to negotiate. If David Eby wanted to create certainty on this issue, wanted to demonstrate that there was a clear decision that the public could understand and that there was a clear line where this has been resolved, then negotiating an agreement would be the fastest way to do that. Getting to a place where you had you were able to stand with the Calvin and say, we have an agreement. The agreement says private property is protected in this area. They've resolved that issue. We've come up with a solution to that in another way. And there's there's a settlement of the private property issue for Richmond. And an example of that is that the province already did that with their agreement and title recognition. The the agreement they signed with the Haida Nation includes clauses that says the Haida relinquish any interest in any of the private property on Haidegui, and we're only dealing with all the crown lands. And so, you know, that agreement has also been attacked as some sort of threat on private property and fee simple. But in reality, you know, the thing that I've been saying is out of anybody in British Columbia where there is Aboriginal title, the private property fee simple owners on Haidegui have the strongest fee simple type title of anybody because they actually have the title holders acknowledging them and upholding it. Whereas everybody else might think, wait, do I have that same protection? And so you actually kind of have the best protection in Haidawai. But if if the government wanted to create that same kind of protection in Richmond and other places around BC, then settling these issues with First Nations is going to be the best way to do that.

SPEAKER_01 26:15

I couldn't agree with you more. When I look at the response to this, having town halls where you sit down and you have allow people to gather and understand in Richmond and throughout BC to understand the decision, to hear that the government will not allow that to be on the table. To your point, like I think that's a really important point. No party is saying they're going to allow private property rights to move. And so there's a bit of fear-mongering, I feel like, that's going on. But the other piece I feel like that's just missing from all of this is an understanding of a lot of that history that you're talking about, and that that almost needs to be embraced and understood. And people are rightly afraid, and the government didn't coax those concerns. And I'm still just trying to figure out why. What what is the benefit to almost seeming confused by the decision and reacting like they don't understand? Like, I just can't imagine that was a logical strategy that they sat down and said, we're gonna go out and do some press conferences and see what happens. Like, I just I I guess I'm struggling to understand that. Do you have any insights on that piece?

SPEAKER_00 27:17

I would say that you know, one of Premier David Eby's strengths, I think, since he was, you know, back when he was part of the opposition through when he was a minister, and you know, he was put in charge of very controversial files like ICBC and the money laundering and and different things, and then eventually housing, is that as a as a politician, as a as a politician, David Eby has always been, he has this instinct sometimes around how to understand where the pol like the public sentiment on an issue might be, and tries to position himself as sort of the champion or the hero in the political narrative that is tackling that issue. So when it was ICBC, he was, I'm gonna take a strong arm and I'm gonna fix this and I'm gonna clean it up and do all the things necessary to do that. When it was the money laundering, there was a clear, decisive and it and he brings this sort of political leadership that is attempting to ride the wave of the public sentiment and he'll pivot. And so when he became premier, you saw a similar kind of leadership where the conservatives or the BC liberals at the time, and then the conservatives would try to attack him on a certain issue, and he would come out and he would completely rewrite the narrative because he would basically move towards their position or adopt their principles or ideas. So if he was being attacked around not funding the police enough, he comes up with a hundred million dollar increase in police funding. He gets attacked on an issue, he kind of tries to undercut that issue by moving himself towards that issue in the way that he thinks that it is politically expedient to do so. And I think that's his that's been his strength, that's been his tactic for a lot of his political career. And then now you're seeing as premier that that being in that leadership position as the leader of the government requires a diversity of tactics or of strategies or of leadership approaches. And maybe that one tactic isn't necessarily going to serve him or do him well this time, because what it ultimately means is that he is now having to throw his relationship with First Nations under the bus. And the reality is you know, I did analysis on this a few uh elections ago. There's about seven ridings in British Columbia where First Nations play a significant portion of the vote. It's a lot along the BC coast from Campbell River all the way up to the border with Alaska. There's a few places in the northern interior where First Nations occupy sometimes 25 to 35 to uh percent of the population. And historically, those have been very NDP aligned voters. But what happens if he starts to you know push those voters away? They start to stay home. Unlikely that they'll vote for other parties necessarily, maybe the Greens, if if there's enough relationship built there. But largely when First Nations don't feel like that government represents them, they'll just stay home. And then the other party is able to get the votes. And when you have an election like the last provincial one where they came down to one riding to form government, those seven ridings become pretty important. You know, my communities on the North Shore, North Vancouver Lonsdale, has three Squamish Nation Reserves. And when the Minister Bowen Ma was first elected as an MLA, it was largely because of the Squamish people that it came out to vote for her. And that election came down to one riding. So I don't think that the premier and the party can take First Nations voters for granted. But the way that they're behaving, I think, and it's not just on this issue, I think it's across the board on various issues.

SPEAKER_01 30:40

Fascinating. I'm hearing that Musqueam is looking at trying to participate in the appeal process and put their position forward. I haven't heard anything from Squamish yet in terms of what their response is going to be. But what was the reaction from your perspective of those local communities? Cowichan is a fair distance away. And I can tell you within the Stolo territory, we're now concerned about other First Nation communities trying to take title claims within our traditional territory. And so I'm curious what would was your reaction and what are you hearing on the ground?

SPEAKER_00 31:15

Yeah, so you know, it was it was a lengthy case, right? When it when it went to trial and went to the the hearings and the cross-examinations, it took a long time for it to finally come out. So I think a lot of First Nations were waiting and waiting and waiting to see what the decision would would bear fruit. You know, I think that both the Muscum and the Sawas and challenged the the case as parties to it. There was also, I mean, the one player in all of this that's actually kind of gone unscathed in the public criticism and discourse is actually the federal government was also a party to the case. And most of the federal lands that are left as a part of the area are actually federal lands, not provincial. So there's that piece to it. But there was, you know, all these parties that were part of the case. Squamish was not, which we we uh Squamish Nation was never part of the case. We were never party to, we never got involved. Although there was an acknowledgement in the case by the judge that there was a Squamish village just north of the Cowichan village in Richmond near Steveson as well, which I thought was interesting. But, you know, I think one of the challenges that First Nations are all generally faced with is that the courts, as in their sort of march towards defining Aboriginal rights and title, have, you know, clarified with each case, they sort of clarify more and more of what this means because the case, each case brings a set of circumstances, and then the courts have to sort of evaluate those circumstances and come up with a decision around what are the facts relative to these circumstances. So one of the things that the courts did previously is that they they defined the issue of Aboriginal rights and title and of reconciliation is where First Nations, First Nations do not have to prove title. They just have to be able, they if they assert title, then there is a duty on the crown to then reconcile with those interests. And then there is, has been, you know, this unofficial policy by the crown to evaluate the claims of First Nations on a scale of how strong is this First Nations claim to this area? And the Crown will have their own set of criteria on which they evaluate those things. They'll place a ranking of what they think that that strength of claim is. Is it a low claim? Is it a high claim? And then they'll sort of assign a level of engagement to that First Nation relative to that asserted claim. So if the claim of title is high, that there is a strong evidentiary record, it is uh undeniable, and there's a bunch of pieces that kind of come together around that, then the duty to consult and accommodate will probably be pretty high. And there'll be a larger maybe participation in the project, there's a larger role of First Nations to influence the project. Whereas if it's a very low claim, you know, maybe there is a bit of interest in what happens in the area, but maybe that First Nation didn't have significant history of use and occupation of the area, then the government will have a different response to that. So I think what's happened is you have now First Nations across the province where they're recognizing as long as they assert, if they assert, assert, assert, then it'll create opportunities for them to negotiate with the crown and it'll create opportunities for them to participate or to receive benefit from certain things. And so everybody kind of gets into, I think, you know, a lot of people get into the sort of if we just keep asserting, then there's going to be a return on that push. And that's where First Nations are dealing with the conflicts around overlapping territories and different claims and things like that. In this case, it's similar. You know, the Fraser River, as you know, you know, Stalo name comes from the name of the river. Lots of family ties and relationships all the way up the river and all the way to the coast and down south into the island. And there's a lot of this intermarriages and history. And, you know, indigenous peoples from all over the BC coast came to the Fraser River for because it was the largest river. It was the biggest river, the most plentable river for everybody to harvest from. And so a lot of relationships come as a result of that. And a lot of history has come as a result of that. And so I think the reaction, you know, for some is that the this this case of the Cowichan, you know, not of coming over to the mainland is one that feels like a bit of a threat or feels like it's a bit of an encroachment on maybe your territory. But again, the challenge with all of these things is that you have this complicated history of waves of diseases that wiped out our population and changed the social dynamics as a result of that. You have the Indian reserve system that confined our people to certain plots of land, whereas we might have been a bit more migratory for years, the decades and generations prior to that. And then you have the changing of dynamics and relationships through intermarriage. You know, some communities have been intermarried for 100 years, so they become bilingual as a result of that. And some communities haven't been seen as having a physical present in a certain area for a long time and are maybe now reasserting that presence. So it feels like it's a new thing or it's a different thing. But if you go back further, there was maybe a history there. So a lot of these things are complicated. They're obviously nuanced. It's, it's, it's, I think this is why First Nations are choosing to go to the courts because there's no other mechanism to resolve these things.

SPEAKER_01 36:23

I agree with you. One of my chief complaints, uh no pun intended, is the fact that the province and the federal government have not been investing a lot in trying to pursue treaties or reconciliation agreements that actually do put a close to title. Like I've read a lot of reconciliation agreements, and they don't, a lot of them don't speak to title and putting that chapter to a close and came with a lot of funding and a lot of supports, which is not something I'm against. But if you're not resolving the underlying concerns that British Columbians think you're reconciling, then I feel like British Columbians needed to be at that table. And that's been one of my common feedback about this process is British Columbians were not expecting this. They didn't have a good understanding of what reconciliation was by this government's definition or the federal government's. And so they're just kind of finding out now where we are, and they're so far behind in the literature and in the case law that I don't find it unreasonable that they're reacting this way. But the other piece I'd like to get your feedback on, you're no longer an elected official. So I'd be curious, you can be a little bit more honest about where we are. But I look at the response to Kamloops took in terms of immediately after seeing this claim, claiming all of Kamloops. And there's this overall fear about property rights, and then they make that move. And I'm I don't exactly know how they came to that decision. I'm sure it was a court process, but that feeling creates more division and fear. And then I believe it was Quetlam that put forward they want to put claim over all city parks and stuff like that. And and that brought out news stories. And I just, I'm wondering what you think the obligation of as First Nations to be able to also participate in a communication strategy, to also put forward what their plan is. Uh, as someone who was an elected official, I'm just curious how do we approach this in a in a good way that brings British Columbians along as well?

SPEAKER_00 38:12

I think that's an excellent question. It is an area that I think we as First Nations leadership also have to look at where we can be doing better or what we can improve upon. Because ultimately, we if we want to be successful, you know, we have to look at what are the key metrics to success and what are the pathways to success. If if we're working towards, you know, the betterment of our communities and the advancement of our communities and the resolving of these long-standing grievances and issues with the Crown, how do how are we going to be effective at that? And, you know, one of the things about our uh Canadian system is that we obviously live in a democratic, you know, pluralistic society. That means that there are voters who vote for their elected leaders and hold them accountable as a result. And, you know, I'm a big believer that politicians will only move as far as the public will allow them to move. I think that too often activists sort of expect to take the shortcut, which is I'm gonna just challenge the politician to do what I want them to do. And if they don't do what I want them to do, then then they're the problem, as opposed to saying, as an advocate or as an activist and saying, wait, do I have the public with me on this? Am I giving the space for the political leaders to move in the direction of where I want them to move on this issue? And I think this is where First Nations can do better in the way that we communicate and engage the public so that we are actually doing that work to help support the political leadership and moving in the right direction. You know, I I look at, you know, uh Jazz Joel Hall, for example, who has interviewed me a lot of times on these issues, uh, worked in government before as well. And you know, he had a great piece in response to The Couch and Decision and some of the other court cases that came out. And he talked about how First Nations leadership also need to step up. And it's like you think about what are we doing as First Nations leadership to engage the public on these issues? Are we holding our own town halls, right? We're upset that they're holding their town halls and having their, you know, misinformation, but are we doing our own town halls with the public? Are we communicating in the languages of the public, of ordinary, everyday working uh Canadians throughout the lower mainland, for example? You know, English is obviously the most dominant language, but there's also five other languages that are predominantly spoken. There's a lot of non-English language media that gets the word out and it communicates on these things. How are we engaging with not just the types of Canadians that we're used to can engaging with? Because obviously, as First Nations people, we've had a long-standing relationship with sort of, you know, the Anglo-Canadian side of the Canadian conversation. But there's a whole other side of the conversation that we don't really engage on either, and then translate these terms into concepts that people can understand and what this means and why this is important and what the value is. And then I think there's just work that we also have to do, you know, as First Nations leadership to understand what what it what does reconciliation really mean for us? And what how do we define that? And how do we explain that? And how do we communicate effectively on these really hard concepts? You know, these are very abstract concepts. Things like reconciliation is a very abstract concept. What does that mean in terms of policy? What does that mean in terms of tangible things? And how is that going to be a benefit to you know every every ordinary day Canadian? And I think those are important things. I'm not seeing that necessarily, you know, from our own side of the conversation, unfortunately. So there's some work to do, I think, in that regard.

SPEAKER_01 41:31

I really appreciate that because I couldn't agree with you more. Like I've attended some of the BCAFN, the Assembly of First Nations stuff, and I just like getting mad at property owners and accusing them of being racist for being scared just doesn't seem like a strategy. It doesn't seem like a plan. It doesn't seem like a path forward. And I'm just dying for a First Nations leader to come forward and go, we understand Canadians are afraid, we understand British Columbians are afraid, we hear where you are, and we want to work with you, and we want a path out of this. We don't want to be a forever welfare state. Like speaking to Clarence Louis, he talks about like it's we want to get out from under this. He has a sign in his band office that says natives have always worked for a living. He like he is a great proponent of the path forward and saying we should set benchmarks. Like, okay, First Nations are more likely to be homeless. How do we fix that? Well, BC Housing has a plan, and my community has BC housing units coming online. That's extremely helpful. Then you look at other issues and go, okay, where's where's the gap? How do we fill the gap? And to me, there does need to be a timeline on when we resolve these issues and when some of these underlying pieces are addressed. Do you agree with that? There's some people who say reconciliation is a forever journey we'll be on for the next 300 years. And then there's some that go, no, let's set some benchmarks and let's get to work and let's show that we can get stuff done again. Where do you land on that spectrum?

SPEAKER_00 42:54

Oh, I'm a big believer in things having a beginning, middle, and end. I like building things. I like, I like planning for a party, so to speak. I like to have these moments because it's, you know, every culture, I think around the world, every culture in Canada, you know, has that some kind of value around wanting to build a better future for your children and your grandchildren, right? Like it's, I think it's a common in so many cultures. And I think largely that's what First Nations leadership is trying to do in different ways, and maybe they're effective or not effective at that. You know, I think whatever political spectrum you come from, everybody who runs for office or gets involved in a political party or votes in is engaged across the political spectrum. Everybody th is doing it because they think they're doing it for the right reasons, because they think that their ideas is how we're going to build a better community for their children and grandchildren. Like everybody is trying to do this the way that they think is best. But there is, I think, a world that we have to be working towards. There, there is a dream that That we have to be working towards. And so much of that dream is coming true. You know, so much so much of what our old timers and our elders who had to struggle and fight for certain things in their time and were able to move the baton along and then hand it off to the next generation. And we're kind of doing the same, but there's so much of what's happening now. You know, I look at how many of our First Nations people are becoming educated with, you know, bachelor's degrees and master's degrees and PhDs and are taking on positions of importance across, you know, both the private sector and the public sector. And that was a dream of our elders, right? They talked about wanting our people to pick up the tools of education and pick up the traditional values and teachings and use them together to help our people in this modern world. You know, I think our our ancestors were also very intelligent around wanting to understand what these modern tools meant for us and how to use them, whether it was literacy or whether it was, you know, modern tools like steel and and and other kinds of things that came with that. So, you know, I think that there needs to be a bit of a goal, uh, you know, objective, an outcome, a place that we got to get to. You know, my big thing is the challenges that we face as a society, all of us together face certain challenges as a society. And we're experiencing that now in this kind of really strange and interesting time being in Canada, being Canadians and being in Canada. And I I've always felt that like First Nations First Nations have ideas, we have values, we have a culture that is able to contribute to those solutions for everybody. We have ideas that stretch back thousands of years, we have uh cultural practices that stretch back thousands of years that we think, I think, have some value to strengthening this country and strengthening our communities and and other cultures do too, and other communities do too. And so it's just figuring out how are we going to continue to do that together. And I, you know, I I I agree that like I like I said, I'm a big believer in in getting things done. Like we just got to get things done for all of our people.

SPEAKER_01 46:03

May I ask, you have like I love everything you're saying, and we're on the same page, but I I will admit that when we say some of these things, or at least when I say some of these things, there are people who are like, the end is never like we just have to keep pushing, and we have to do so, like kind of mindlessly, keep pushing, and it's never far enough, and we've got to keep going. And they gave us this, we need to ask for triple that, and it can never stop. And those are often the loudest voices in the room. They're the ones trying to maintain the conversation. They're often the ones in universities getting paid and and and being comfortable there, not necessarily in community where people are struggling. And so I often like look at how First Nations issues are covered and go, they're just choosing the loudest, most angry person. They're not pulling the community member that's grateful that their house was renovated properly so it's livable. Like they're asking the most angry, bitter person. And so when you're sharing these ideas, do you run into pushback that it's just like, no, we just got to keep pushing? And what is your sense of those advocates?

SPEAKER_00 47:05

Yeah, I mean, it's it's a good conversation. I I would say that my politics has, you know, been shaped by different things. It's been shaped by by my upbringing. And, you know, the stories that I heard of of my, you know, family members and my my great-grandfather, his name was Andy Paul, and he was trained as a lawyer in the early 1900s, and he actually wasn't able to become a lawyer, although he could have, but at the time, it was the law was you had to give up your Indian status in order to enfranchise, or you had to enfranchise in order to become a lawyer, so he refused to do that. So he became trained as a lawyer. He actually got mentored by a law firm in Vancouver, and he was actually brought there by the leadership, RCM, from our community to train him as a young man. They they saw potential in him and said, we want him to learn the ways of the sort of European colonial law system so that he can come back and help our people. And he spent his life career doing that for not just Squamish, but for other First Nations, helping them with legal issues and representing them uh pro bono on cases, some of it involving criminal stuff where you had First Nations men that were wrongly accused of murder, because at the time it was easy to blame you know the native man for a brutal murder that might have happened in you know in a rural part of the country or the province, you know, in a logging camp or something. And the racism was just so heightened that it was easy to do things like that, and there wasn't a lot of legal representation for people our people like that. So I, you know, I grew up hearing stories of like folks like him and others, you know, who fought the potlodge ban. And, you know, I so my politics is influenced by those things, but it's also influenced by, I think, well growing up for me, a frustration of you know, both the advocates and the activists and the leaders who, you know, prescribe to this to very abstract notions and a constant sort of reaffirming of abstraction as opposed to, you know, for me, I I, you know, my academic term that I call it is like a materialist sort of idea. You know, what is what are the material conditions and needs of people and what needs to materially change in their lives in order for them to have a better quality of life? And and that looks different for different people, right? If you're a working mom of of four kids and you make maybe $45,000 a year as a single mom, there's going to be a significant need to address there. And if costs are rising across the board and rent's really high, like helping those kinds of people is different than necessarily say helping people make like $90,000 a year and it's a dual income or something like that. Right. So I always like my politics is shaped by what is the material needs and conditions of the people that we're trying to help, and how do we do that and what is actually going to be meaningful there? And I think that there is sometimes in our politics, especially on the left, especially on the progressive side of things, this sort of and and by the center to a certain extent. I think it's actually, you know, there's there's this conversation now happening around identity politics. And a lot of these things are this sort of commitment to these abstract notions and these fights over abstract notions that don't ultimately result in any kind of material change. It's just fighting over ideas and and then you uh attach some sort of moral value that if you don't believe in the things I believe in, then you're a horrible person and thus must be excommunicated from the group. I just don't think that kind of politics really resonates with with ordinary people across the political spectrum. I don't think that's how you win elections necessarily, and I don't think that's how you get things done. Like if you want to get things done, you have to be able to bring ideas that are actually going to mean something to somebody and actually benefit them in some way.

SPEAKER_01 50:46

Speaking of which, the conservatives, we haven't talked about them yet. The BC conservatives are looking for a leader right now. All of them, I think, are betting that repealing DRIPA is the root solution to much of the concerns and the woes British Columbians have about where they are right now around the Cowichan decision and other funding investments. I think, and I've tried to make this clear, I think they're wrong fundamentally. DRIPA isn't the driving act between behind Cowichin or anything. You can point to, yes, the court referenced it, but I think the result would have been very similar even if DRIPA didn't exist. And I think they're they're falling into their own trap by thinking that that's going to be salient enough to get them support, but that's not a plan as to where we go from here, right? Repealing something isn't a step forward, it's a step back, and then there they don't have another proposal beyond that. What are your thoughts on this idea of repealing DRIPA and and how the BC conservatives are responding?

SPEAKER_00 51:46

Yeah, you're 100% right. You know, there's been a lot of conflation of the Declaration Act with the couching decision and that the Declaration Act is somehow tied to this question around, you know, fee simple private property uh rights. They're very different. The issue in that case was an issue of section 35 Canadian Constitution rights. So if you want to if and and you have you know some folks like 1BC who have suggested we need to amend the Constitution, then you know, good luck. There's it has been tried before, it's very difficult to do that. But there's sort of this conflation of the two, and it's obviously incorrect. And then of course it just it's it's just tied to the politics, right? It's it's tied to there's there's political tactics that happen in in in our politics and our democratic systems, and one of those is a question of if you're a political party and you're a political leader and you're trying to build a political movement, and a political movement includes things like donations and volunteers and endorsers and candidates and all that kind of stuff. And one of the ways that you can be successful in politics is you find out what are all the things that a different constituencies are mad about. And you bring all those people who are mad together and you say, We are the party that is going to be mad with you, and we're going to get to government and we're going to change all the things that you're mad about. The other part of that conversation is that as a political party or as a political movement, you can actually go in and help generate anger towards an issue because now you're inciting an anger that you can then capitalize on because it helps fuel that political movement. And that happens across the political spectrum. That's not necessarily a tactic that one party has monopoly over, you know, right? And some of that is based off of legitimate anger and frustration, right? Like if you're, if, if you're angry that your government is not doing a good job, you have legitimate anger there and eventually a political party will come and recognize that. And so I think there's a little bit of that going on. I think that I think for both our two main parties right now, both the BCNDP and the BC conservatives, neither of them really have like a compelling vision for what the future holds around reconciliation. Like I don't think I really understand like there's a lot of the pleasantries and a lot of the sort of niceties from the BCNDP, but I haven't heard necessarily a compelling vision in light of you know these recent decisions and in light of the way that the courts have sided with First Nations repeatedly. What is the vision? What is the competing vision? How are they different? What is the plan forward? How is this actually going to play out if you had the power as a government? Because on one side you have the BCNDP, which has been in power, you know, they implement, they passed DRIPA five years ago, and there's been a handful of legislation that's actually been reviewed or amended to incorporate DRIPA. They've delayed a number of legislation now, you know, the Heritage Act, the Land Title Act, and and more. So I think that there's this, there's a lack of a vision happening on both sides. But, you know, time will tell. I think we get closer to the next election, whenever that might be, maybe we'll see a more clearer vision of what that holds, and hopefully that that does come through. But I think the the main problem is like obviously the challenge with with politics is as we've seen in this sort of century, is facts really don't have a lot of strength within politics. It's really easy for politicians to get away with with uh misrepresenting facts and the truth really disappears. And this happens with governments, this happens with opposition parties. But my my thing is I really wish that we had a higher integrity of our political leadership to have your ideological ideas around the government and around society and around what you think it is. If you think it's low taxes and small government and deregulation and to it encourage the economic growth, if that's your thing, great. If your thing is you think that government should be more involved in certain things and you believe in and more taxes and things like that, great, it's fine. But I do think that at the end, the one thing that we don't see enough of is a real integrity when it comes to the truth on either side of it. And sometimes that looks like people on one side acknowledging that people on the other side might have been right, and vice versa. And I don't think we see enough of that either.

SPEAKER_01 56:04

Kelson, we have so much to talk about. We've just scratched the surface of this. Um, and I hope to have you back on because I think a lot of this is about the path forward, and there's not many people talking about what you and I are talking about from the First Nations end of like how do we navigate these very complex waters. So I I do uh look forward to having you on again. But how can people follow your work?

SPEAKER_00 56:25

Yeah, you can follow me. I have a Substack where I do a lot of regul my regular writing at call Salem.substack.com. Follow me on Instagram at call Salem and on Twitter and on Blue Sky, LinkedIn, just all by my name, Call Salem, K-H-E-L-S-I-L-E-M. And yeah, I'm really I I'm very happy that we got to do this. I've obviously been a big fan of the show and the work that you do. I think it's really wonderful to see, you know, our our First Nations people taking up the kinds of space. You know, sometimes I think we as First Nations people get seen as just, oh, they're just they only deal with First Nations issues. They're only here to talk about First Nations issues. But I think you've been, I think, very successful at communicating across a lot of different constituencies and bringing different voices to the table in a different way. And I'm very happy to be here.

SPEAKER_01 57:13

Thank you very much. Please follow him. He is a bright light in a very complicated world. So thank you again for joining us.

SPEAKER_00 57:19

Thank you.