239. Thomas Isaac: What is Happening with Indigenous Rights in BC?

Aboriginal law expert Thomas Isaac joins Chief Aaron Pete to discuss reconciliation, DRIPA, UNDRIP, Indigenous rights, B.C. politics, Section 35, economic certainty, David Eby’s leadership, and whether Canada can move beyond symbolic reconciliation toward practical action and shared prosperity.

Transcript

SPEAKER_01 0:00

Thomas Isaac, what are your thoughts on DRIPA?

SPEAKER_00 0:04

I'm on the record saying British Columbia, imagine the last time you heard a lawyer say this. BC is in breach of its own statute. This was the day it was enacted, and it can never be in conformity with it. What is your thoughts on David Eby? Look, I I assume he's a decent human being. I do. I think he's severely misguided.

SPEAKER_01 0:29

In the past 10 years, under Justin Trudeau's liberal government and the NDP's John Horgan, now David Eby's government, billions and billions of dollars.

SPEAKER_00 0:41

But there has been no equitable distribution of wealth. Meanwhile, our economy is shrinking. Meanwhile, we've got 180 claims for us our First Nations statement standard. You don't have to be too bright, I think, to figure out that the bridge is up. This is not sustainable.

SPEAKER_01 0:58

Do you think we should be reconciling? And if so, what is still left to be reconciled? Thomas Isaac, thank you so much for being willing to join us today. It's such a privilege we got to share the stage uh at the Canada Strong and Free event. And I really find you to be adult-in-the-room type energy. But for people who aren't acquainted with your work, would you mind introducing yourself?

SPEAKER_00 1:27

Sure. Hey, Aaron, and really a pleasure uh to be with you. Um, so I'm Tom Isaac. I'm a lawyer, uh, practice Aboriginal law. I actually started studying in the area back in 1985. It wasn't very cool to be studying back then uh Aboriginal law. Uh, there weren't a lot of people interested in the area, but I found it really fascinating that Canada voluntarily amended its constitution way back then. And so I started studying in that area, spent the earlier part of my career in the public service working for the governor of Saskatchewan, helping set up Nunavut for the governor of the Northwest Territories, and then was chief treaty negotiator in British Columbia. I think I had 23 tables at one point in um in British Columbia in the 90s, and then uh started a national Aboriginal law practice in, I think it was 2000. And so we're active, we very, very large dedicated Aboriginal law group. We act for uh governments, businesses, indigenous and non-indigenous governments and businesses. Um, do a lot of work for public governments and uh big litigation practice, but we do a lot of negotiations, a lot of commercial work. I love doing deals. Uh, we act for the indigenous side, sometimes the non-indigenous side. Uh, I've done a little bit of residential claim work. I'm very proud of that. That was tough. But that's anyway, that um that's sort of me in a in a nutshell. I've been doing it for a long time. We're active in every part of Canada as well. So every territory, every province.

SPEAKER_01 3:10

I'd like to take this back a bit to first principles. And one challenge I see as as we get down this reconciliation rabbit hole, which tool, which approach is going to work. I think it's important for listeners to take it back to why do we need to reconcile it all? And what exactly are we reconciling? So I'm wondering if you'd be able to walk us through the history from your perspective of the relationship between First Nations and Canada and British Columbia, how that relationship came about and your reflections on that dynamic.

SPEAKER_00 3:43

So this perhaps I don't pretend to be an historian, uh Aaron. So this will be, I'll give you my colloquial history, which will be fairly brief. But, you know, essentially we had settlers come to, well, let's I'm originally from eastern Canada, Atlantic, Canada. So I'll start there. Uh we we had folks land on our shores uh many, many hundreds of years ago and started buying up and taking land that was otherwise being used by indigenous peoples. We had the Royal Proclamation issue in 1763 where the British Crown said, no, no, no, settlers can't take up or take indigenous land. Uh only the crown can. And then, of course, uh the crown didn't always act consistently uh in terms of of how it did that. Uh, there was some you know very um uh bad examples um and a bad history of how uh uh Canada was essentially settled. Um I think the most striking example of that is the residential school system. Um you know, and I've talked to people who, you know, have good things to say about or that have gone to residential school, that have good things to say about their experience at residential school. I've talked to many, many more that had the exact opposite. And it was a tragic experience. And systemically, so broadly speaking, residential schools were were not productive, particularly for the health of communities. Um and actually I'm jumping ahead now, but I just have to tell you, I've got a carving behind me of a hummingbird, and it was given to me by survivors of residential uh school, a topic I've avoided most of my career, I might add. But I ended up doing uh work in very, very honored, probably one of the highlights of my career on the Godfortson settlement, um, where uh an amount of money has now been placed in trust, focused solely on healing, and healing not just the direct survivors, but their families and communities. And this is a good use of public money. Anyway, that's sort of A to Z on that piece of uh uh history, and I've not done that justice, but it's an example. And then, of course, the outstanding land issue. So parts of Canada uh have very, very clear treaties, both historically signed, whether it's 1700s or 1800s, early 1900s, dealing with land in one form or another. Some are clearer than others. I assume we don't need to get into all the details right now. And then we entered into a modern treaty process, starting with the 1975 James Bay and Northern Quebec Agreement, and you know, most of or all of Nunavut, um most of the Northwest Territories now covered, Yukon, with a number of jurisdictions really remaining outstanding. British Columbia, of course, with give or take about 180 First Nations still claiming and uh not having a settlement of the land issue, of dealing with their interests inland in British Columbia. That's a formidable. I'm sure we're going to talk a bit more about that. But it's not just British Columbia. So historically, the East Coast, we had what are referred to colloquially as the peace and friendship treaties. They didn't have express land cession clauses in them. And so you get into a debate about well, did those treaties do anything vis-a-vis land? Um, and what is the nature of land rights in the Maritimes? My point in raising it with you in terms of the history you asked me about is that all three maritime provinces, so that's Prince Edward Island, Nova Scotia, and New Brunswick, all have the same situation as British Columbia. A lot of Canadians don't realize this, but all three of those provinces are either claimed with civil actions being filed or assertions of Aboriginal title or land rights. Um, throughout much of the 1800s, late, mid to late 1800s, all through right up to the current day, we've had to live with the Indian Act, the federal legislation. I say we have had to live with it. Some people have had to live with it more than others, namely First Nations people, uh, not being able to own private property, not being able to hire lawyers for many, many decades to defend their claims, uh, losing their legal status. They don't lose who they are. I mean, people can define themselves as they wish, but losing their legal status. Can you imagine what that must be like? I mean, I identify a certain way in terms of culturally, in terms of my own family, which I won't get into right now. And I couldn't imagine the state coming in saying, Tom, well, I will say, Tom, you can't eat Lebanese food anymore. Um, you know, that that's illegal. Um, and you you can't eat Lebanese food with any of your East Coast relatives. Uh, that would be deeply offensive. It would scar me and probably my family. Well, it was much, much worse. For it wasn't just about uh whether or not somebody was sharing a meal. But I use that just as, again, colloquially explaining that there was a very, very harsh history of forcing people onto reservations on reserves, um, and denying them the rights, stigmatation, um, and um a long history of sort of denial um and equitable treatment. And I think one of the very good things about section 35, and there's some challenges with 35, but is trying to come to grips with that history. Now, I do feel at some point we have to move on from the history, Aaron. I will say that. I and I say that with the greatest of respect to both my Indigenous and non-Indigenous friends, but at some point, that doesn't mean you forget the history. I'm not not saying we forget it, but at some point we have got to turn the page. We've got spotty examples of that going on, which is good. But we need a lot, a lot more work to move on. And I would say that's sort of for all parties coming to the to the table. So that that wasn't a very good, probably not a very good historical lesson for all the historians watching, they're probably deeply appalled by that. But we are where we're at, and I will say one final thing, Aaron. Canada voluntarily amended its constitution in 1982. No one had a gun to Canada's head. And such that now, and I will say this that you know, we started off with a lot of trauma, a lot of dysfunction, and there's still trauma and dysfunction that we have to address in so many communities. But as a matter of law, we are now in a place where our country leads the globe on protecting indigenous rights against unilateral state action. Now, I'm not an apologist for the Canadian state, and there'll be some people who say, look, it hasn't done enough, and I respect that. It's a free, that's what makes our country so great. It's a free country, and we can have a debate about it. But anyone suggesting that Canada's lagging behind the rest of the world legally, we've taken this country from zero to a hundred. And quite ironically, maybe, but in many instances, thanks to Indigenous peoples and our court system that has um that has allowed this to occur um in our country. So I think that is worth noting where we've come as a country. We don't seem to have recognized where we've come to. I will also say this we seem to be in denial on all sides of the fence of where the country has come to, but and that we're on a journey here together. Um but that that that's sort of a few introductory comments, I would say, at least in in terms of my non-Indigenous perspective on our history.

SPEAKER_01 12:20

Do you think we should be reconciling? And if so, what is still left to be reconciled?

SPEAKER_00 12:26

Well, of course we should be reconciling. I mean, look, reconciliation is two components. I happen to ascribe, uh I'm a lawyer, and so I guess I'm maybe biased towards the law anyway, in terms of how I see the world. I believe in the rule of law. I'm a proud officer of the court. I believe in our third branch of government and respecting our judicial processes. Even sometimes when I disagree with decisions, I always respect those who have to be make those decisions because I think it's important in a civil society. But reconciliation has two components to it. One is the crown reconciling with the negative uh elements of our past, our past history, whether it's residential schools, the land issue, the outstanding claims. And again, this is our legal system that's generating this as well for your viewers, those who you know wonder where these claims come from. It's because we amended our constitution. Um these are perfectly valid legal claims under Canadian law. And so that's a key component to reconciliation. But Aaron, there's a second piece to reconciliation that we don't talk about enough, and it's that day-to-day reconciliation, and the court has been clear on this, and I do have a third piece to this that I'll add, but and that is the burden on our governments, our public governments, to reconcile Aboriginal interests with non-aboriginal interests. That's the government's job. The court has been very clear about this, and in my view, that requires a thoughtful plan. We're dealing with very serious issues when we're dealing with reconciliation. I would say truth is critical to reconciliation, uh, but I will quote Desmond Tutu. It has to be everyone's truth. We have to enter into a dialogue, and what we're witnessing in British Columbia right now is a lack of transparency. Our public governments seem to be promoting that. It concerns me greatly the lack of transparency, because that is not allowing the truth to be spoken from all people that may be affected. Uh, that's not to say every word is the truth, but you have to allow for that discussion to occur. The third component I would say, and I've never really talked about this with anyone because I usually just stick to the first two because it's the law. But I mean, there is a role for you know, indigenous and non-indigenous people. The first two are about governments, really. The third one is not necessarily the law, in my view, but it's really about ensuring that as individuals we can reconcile and live together in our country, be proud of our country. Maybe we could all have safe drinking water someday, maybe we could all have a decent health care system someday. Surely there's enough commonality. And what I've seen over my career, Aaron, I've met with so many First Nations and Inuit and Metis across the country. There's a very strong commonality among humans in this country. There's distinctions too, by the way. And they can be very healthy distinctions. But that for me is what reconciliation is people living together and respecting each other and treating each other equitably and fairly. Our public governments play a critical role in that. And uh I think that's where a lot of the discussion needs to be focused personally, not so much on the courts or even individuals. Um, I really think we need to be focusing on what our public governments are doing and are are they laying out a plan that will allow what I've described for me is a framework for reconciliation.

SPEAKER_01 16:33

We talked a little bit about this on stage, but I'd just be interested in your thoughts. I had kind of made the point like First Nations have never been driving the boat on any of this. We've been a participant in the process. We didn't get to choose the specific claim process that Canada developed. We didn't get to choose the red lines for the treaty negotiation, for reconciliation agreements. We have not been in the deciding room of how all of these frameworks come about. And this has been an issue since Canada's inception and British Columbia's inception. What would you say to people about the history of these two dynamics? Because the thing I'm imploring people to remember is just we didn't drive any of this. The reason there's still so many questions is because of uh different successive governments.

SPEAKER_00 17:21

Well, yeah. So, yeah, and I would say in recent years, you're not the only ones not in the room. No one seems to be in the room right now, certainly in British Columbia. I'd love to be in a room trying to at least not necessarily have my way with everything, but can we have some prudence and long-term thinking, please? You know, can we have a map that will get us to all living together in peace and harmony laid out in an affordable way where we can all have health care and education and safe roads? Because all my Indigenous friends also want, I won't name the nation, but I remember visiting one nation. I saw the road they have to drive their kids on to school. And it it's not been fixed in more than a decade. I think if the average British Columbian, if such a thing exists, could see that you know, be eye-opening of just what is out there, and there's no game plan to fix that road, there's no money to fix that road. So, you know, uh I I will say this though, that Canada here's my view of the world. Canada's a nation state, it is a reality. The court has talked about the reality of crown sovereignty. You know, I hear this talk from the BC government about co-jurisdiction with 204 First Nations in BC. And um, yeah, we can't manage the government with one government. You probably heard me say that on stage the other day. Oh, it's true. I'm sorry, I'll just say it. And so many of the indigenous clients we work with, and the non-Indigenous ones too, want to see First Nations Metis and Inuit do really well economically. I mean, this is part of the greater success of this country, is we need everyone to be rowing in the right direction and rowing successfully in that direction. And so I don't know, at some point I think we got to get over it and move on, be proud of our country. I mean, this country is under threat. Um not internally. I mean, there's internal threats, but there's external threats as well. And folks will have to decide. I mean, I'm not a politician, so I'm not here to, you know, tell people what to do. People will have to make their own decision, but you know, I I think we take a lot for granted in this country. We take our free speech for granted. Again, I'm not an apologist for the country. I mean, we don't do everything perfectly. I'm not saying that. We've got a lot of room to improve on a lot of things. But we're very, you know, we have traditionally been quite tolerant. But we really need to start looking to the future together, both Indigenous and non-Indigenous peoples, of what we want this country to be. And in from a British Columbia perspective, Aaron, I really do think BC is the canary in the mind right now, where just given the order of magnitude of issues, the recent events over the past year, the what I will call the craziness of the current provincial government, and it is. It's just when you don't know what tomorrow brings, I describe that as craziness. I should have a reasonable expectation that there won't be a goofy decision coming out of my government, you know, every week on something. And, you know, I've never said that about a government in my life in this country. And I, you know, I've uh um, you know, I'm not a party member. I'm not, you know, I am truly nonpartisan. Somebody said, oh, they saw me at a conservative event or something. So the NDP invite me, Greens can invite me out gladly. If I can squeeze it into my schedule, gladly, anything about public education, people don't have to agree with me, but I'm always happy to share, you know, education with the Constitution and the case law around section 35. So I think we've got to deal with the reality of crown sovereignty and how we're going to make it work. Um, people don't want to do that, then well, we'll all have to live with those consequences, won't we? But I think we need to start having some mature discussions. Um, and it believe it or not, Aaron, can I just say one other thing? It leads me to a point that I've been making, which may surprise you given the question you answer, ask me. But I do think part of the problem we've got in this country is platitudes. Um, I wrote in my Metis rights reports, I wrote a report for the government of Canada on Metis. Remember, Metis people are in the constitution. We voluntarily It's Aboriginal Peoples of Canada, includes the Metis of Canada. So I do a report, 2016, focus on the Pauli decision, give some advice to Canada. Canada's implemented most of the recommendations. I think there's one that's still outstanding. Maybe two. In that report, I make an observation about the use of the term reconciliation by governments. Everybody's into recognition. I mean, you asked me about it, but it was a legitimate question. And I think the way you asked me about it. But if you notice what my answer was, I hope everyone noticed that it was about doing things. It wasn't about, oh, let's acknowledge. Let's go in and give some symbolic. And look, I'm not downplaying, look, uh, it's beyond my pay grade, right? People like symbolism, that's great. It's not part of my reality. Um, I, you know, I see a lot of people treating my clients with symbolism, whether it's my indigenous clients or non-indigenous clients. And it doesn't mean much. Uh, to quote Keith Richards' talk is cheap. What isn't cheap is action. And it's my view, in direct answer to your question now, that platitudes on indigenous issues in this country should be illegal. What I said in my Metis report is that reconciliation should be focused on practical things, not on platitudes. I'm now of the view that our public government shouldn't be allowed. I don't want to hear any more land acknowledgments. Don't want to hear it. Don't, oh, it's on all these academics and everybody, oh, it's unseated. Great. So what are you doing about your house? Let's go talk about the couch and well, you know, it's symbolic, Tom. Or when I read the uh the UNDRIP drip of legislation in BC, and obviously it can't be implemented. It's impossible on its face to be implemented fully. And then I get criticized. Well, you're reading it too literally. Oh, really? We're making more empty promises to indigenous peoples that we can't fulfill in 2026, and I'm the one that's the problem for reading it literally. Hmm. So that is part of my answer to your question on this. And we need to mature as a country and start really insisting on our public governments, and maybe our indigenous governments too. But I'll leave that to, you know, I'm not, you know, I don't vote for Indigenous governments. I'm not an Indigenous person. So I'm going to leave that to Indigenous people uh to comment on that. But it's certainly our public governments need to put aside the platitudes and start talking about real action based on concrete uh things and focused on a strong economy for every Canadian.

SPEAKER_01 24:53

Last question, kind of on the history, and then we'll get into DRIPA and where we're kind of. No, no, that no, that was great. Um, I'm just wondering this is a reflection I have, and I agree with a lot of Canadians who comment on this. We have spent in the past 10 years under Justin Trudeau's liberal government and the NDP's John Horgan, now David Evie's government, billions and billions of dollars. And the impact I see at the front lines of First Nation communities has not drastically improved. And to me, that's the only surefire way to address a lot of these issues is to see their quality of life, the education rates, employment rates, addiction rates, homelessness rates, incarceration rates, all of those are my metrics to measure if we are in fact moving in the right direction on a lot of these things. Those haven't moved. That's what my conservative uh friends like to remind me. None of those have improved drastically uh over the past 10 years. And then my other concern is on all of these reconciliation agreements that the provincial government has signed, they didn't close the land question on many of those agreements. They left potential future claims open rather than when you give millions of dollars to a First Nation community saying, okay, and we're gonna close the book on some of these title questions as well to bring certainty to markets. What are your reflections on the past 10 years of reconciliation?

SPEAKER_00 26:21

I would look, there's been some pluses. You know, I talked about the Godfruits and settlement. Um, you know, I'm very proud of that work. I think it's a good use of public money. Um, whether we're healing Indigenous Canadians or non-Indigenous Canadians, we know there's a real need out there. And that's good for reconciliation, it's good for our economy, it's how we should be treating our fellow citizens. But I would tend to agree with every word that you've just said, or I do agree with every word you've just said. I mean, and I'm not going to name names in this interview in terms of First Nations, but I I live in Vancouver. I I live in the North Shore. And look, anybody living in BC right now, and Aaron, you live here, uh, you're better informed than the vast majority of like you know, you're you're plugged in, obviously. I think you will know this to be true. And by the way, this is not a criticism of these First Nations, what I'm about to say. But the reality is if you're in a group of about 25 or 35 First Nations, we could argue about exactly the number. I'm close. That's about right. Life isn't so bad. Reconciliation has been a good gig. Uh you're sitting on very large trust funds with relatively large, small populations, but there has been no equitable distribution of wealth. Meanwhile, our economy is shrinking. Meanwhile, we've got 180 claims followers, uh, First Nations follow outstanding. You don't have to be too bright, I think, to figure out that the bridge is out. This is not sustainable. We give an entire archipelago to what and again, I'm not criticizing the hide up, but if anyone thinks that doesn't come with a public cost to the other 203 First Nations we're supposed to be reconciling with as well. And again, I make no I'm not here to comment on the height of nation, but the idea that this is all just a freebie. Oh, we got a mine approved. We'll give half the provincial revenue to one First Nation. Okay. What about the majority of First Nations don't have a mine in their backyard? Are we not? Oh, well, we're going to share that out of the remainder 50%. Oh, good. So we're approving mines now at double the rate we used to just to maintain the crappy level of health care and education and roads and ferries that we have in BC. Like this doesn't take much to figure out that what we're doing here is completely skewed. There is an elite class at play here, too. You know, I you know what I'm talking. I know you know. And and and it's not, and by the way, this is on all sides of the fence. Some may say I'm part of it. I earn my living doing Aboriginal law. I've never been as busy as I am my entire career than I am today. And I'm going to get busier. I've got a very large team. Some of that is good. We do a, we've got a whole group that does nothing but commercial deals. I love it. It's beautiful to see economic recognition, you know, economic growth for our country, communities taking control. And again, Indigenous and non-Indigenous communities taking control of their destiny. Some would call it economic sovereignty or real sovereignty. That's another whole discussion. But but there's another side to our practice that's growing very rapidly, and it's litigation. And look, I'm not this business about you hear it from the provincial government, oh, litigation bad. All bad. Hmm, that's interesting. Very interesting. We would not have the Section 35 rights that we have today without litigation. I am not promoting litigation as the answer to reconciliation. But anyone selling any of you online right now that all litigation is terrible, that is a ridiculous proposition in a free and democratic society. Now it isn't if it's not a democratic society. But litigation can actually, we there's a reason we have a third branch of government, everyone, and that it's independent from our political system we're supposed to be. So we need to have a much more nuanced discussion. And that's why I love the name of your show. I really do. Because we've been treating this issue like it's amateur hour in the country, on off switches, and it's all sides, right? You say anything, oh, look, you're anti-section 35. Yeah, no, I'm not on stolen land, by the way. I'm gonna say it. No, reject it, not helpful. Let me know when you want to have a mature discussion about how we're going to make lives better for both of our children or our nieces or nephews. So we've got to get to that mature place. I would say many of the First Nation leaders I know will have that discussion. Why they're not, you know, and again, is this way beyond my pay grade? I'm not going to comment on, but our public governments play a very unique role because of the honor of the crown. They need to be setting those out. But I going back to your question, I could not agree with you more. Um, life has gotten a bit better in some areas. If you're among, like again, if you look at BC, if you've had a couple of large specific claim settlements, maybe things have gotten a little bit better. You've got a little bit more cash. But what is the macroeconomic plan for this country? And we don't have one. We do not have a vision. We have never had a vision. The closest we came to a vision was modern treaties. And now we seem to be fiddling with them, as you note, about even whether they're the kind of finality. You know, the province wants to reopen them every 10 years. So if we settle with 180, so who's that going to benefit really? I want everyone to stop and reflect. Uh, my business will be great. Uh we're gonna reopen 180 constitution-protected documents. Let's say 100, okay, because I'll get criticized. Oh, there'll be a number first. Let's just say 100, Aaron. You and I'll round the number down to 100 every 10 years on a rotating basis. We're going, this never ends, folks. Do you can you imagine the size of the bureaucracy and the legal system you would need for each nation and government? Meanwhile, we're trying to all attract capital, to whether it's reserve land, you know, First Nations Land Management Act, land, private property, crown tenure, whatever it is. I mean, we got to start getting real about this. It's silliness. Silliness. That is that if that model were to follow through, what kind of economy would we need just to feed that beast alone? I'm not saying that you can't have openers at some point, but we've got to start thinking about our economy. When I deal with my indigenous claim, again, I'm not speaking for any one of them directly here, but my observation has been whether I'm sitting across from Indigenous nations or on their side of the table or I'm observing them. The vast majority, Inuit Metis and First Nations, there is a similarity. So I'm going to I'm going to give a similarity. The vast majority are focused on economic sovereignty and making life better for their citizens. Yet it's not happening.

SPEAKER_01 34:03

Thomas Isaac, what are your thoughts on DRIPA? One of the fine one of the things I find fascinating now is, and I've commented on this on X, is that it was unanimous. And it was unanimous, I think, in part because there was an optimism that we could bring this to a close, that we could have consistent processes to resolve these things. And so the conservatives, to me, uh back then it was, I think, the the BC liberals, um, but they did something very unique. And it was that they didn't oppose the legislation. And to me personally, I felt like they um they broke what their role in in our legislature and in our system is, which is to offer alternatives, to offer different paths forward, to criticize the legislation, to offer different policy proposals in order to get through this. That is their rightful role as the honorable opposition. And they delegated that duty, they, or sorry, they they removed that duty from themselves to participate in uh we're all on the same page. And now organizations and and the BC conservatives want to repeal it, but I feel like they abdicated their duty from the outset when they should have. There are members like Peter Millobar who says, Well, the government told me it was all going to be all good, and it didn't end up being all good, and so that's on them. It's always the role of the opposition to oppose the legislation and offer different pathways to get to the goal, even if if even if we can agree on the goal, there's a a role to play in offering different ways to get there. And they didn't do that, and now we're in this this mess around DRIPA. What are your thoughts on DRIPA?

SPEAKER_00 35:46

Yeah. So can I start with UNDRIP, Aaron? I think it's important we start with a base level of knowledge. And what I will say, it's on everybody. Um, First Nations, Metis, Inuit, non-Indigenous peoples to educate themselves about some of this. Let's talk about UNDRIP. Published my 17th book, late November, Canada and the UN Declaration on Rights of Indigenous Peoples, with my colleague Grace Wu, who's on our team. I am not anti-UNDRIP. In fact, we've got a client, uh, can I say where? I will say, in a third world country that's indigenous, that we are acting for because of um some grave injustices being perpetrated on them. They are in a country that doesn't have Section 35. They have no legal protection, and they are under attack because they are indigenous. And we're using UNDRA because it's an appropriate tool. It's the one tool that we have. Canada is the world's leading legal regime to protect indigenous rights. I won't debate it with, I won't debate it with you, Aaron. I won't it's a matter of fact and law. Now, I well, sorry, it's a matter of fact that that's correct at law. As a matter of fact, New Zealand is doing some really neat stuff with the Maori. They are. They're doing some really neat stuff, but their legal, it's not just because of their legal system, it's because they've chosen because of their circumstances to go down the particular road. So we could have an arm wrestle about whether it's New Zealand or Canada, as a matter of fact. I'm not an apologist for our country. I'm not saying that we're done. So all the people are starting to tight. Oh my goodness, he and no, I didn't say that. But when you look at the globe, and it's not open for debate. Under was voted on at the UN General Assembly in 2009. At that time, there were 88 states on the planet that had indigenous peoples now. Those are not Tom's numbers. Those are the United Nations numbers. Okay, so if people have a problem with the number, don't come to me. Goes to the UN. They said 88. How many nation states voted in favor of UNDRIP at the time? Well, I'll tell you 42 out of 88 that actually had indigenous people. Out of the 42, how many put material caveats on their vote? Folks, Michael, I wonder what Tom means by material. Let me give you a little flavor. Doesn't apply to our laws. We don't have to abide by it. Um, doesn't affect our constitution, doesn't mean anything in our country. I'm being a little flippant, but essentially when you read, and I've read it firsthand, a majority of those put those caveats on it. The rest, four voted against, and then the other 42 either abstained, and one of the abstentions didn't that day. Of all the states that abstained, I believe one or two didn't have Indigenous people. The rest of them all had Indigenous peoples. And I think it was something like 11 didn't bother to show up that day at the UN to vote. 100% of them had Indigenous peoples. Now, why am I telling you this? Why am I telling all your viewers? UNDRIP's not part of international law, folks. It's not an international norm, it's not an international treaty. There's no signature block on UNDRIP to make it domestically applying. And if you actually read UNDRIP, you'll realize it's impossible to fulfill in the world's leading, most sophisticated legal regime. It uses completely different language. So in 2019, so and I'm not anti-UNDRIP, like I said, we're using it. What I don't like, and if you read the book, well, okay, let me let okay, so let me, I've got two big things. So trip up 2019. What did I say publicly? And I forget the interview, so I'm going to find the interview, but I'm on I'm on the record saying British Columbia. Imagine the last time you heard a lawyer say this BC is in breach of its own statute. This was the day it was enacted, and it can never be in conformity with it. Never. That's before the Interpretation Act, folks. That was just DRIPA. Then two years later, we get the Interpretation Act, and this is the clause that the BC Court of Appeals said, yeah, the word must means must. And on that we've got um we've got the interpretation act saying that every BC law, every BC statute and regulation must be read as being consistent with DRIPA and UNDRIP, or actually the declaration, sorry, UNDRIP. That's impossible. We all know it's impossible. So then you go, why would you do it? So then our court of appeal comes out and says, What? The word must means must. And what's our premier say? We've now got, and he could have said the decision was confused. He didn't say that. And I have a real problem with how he framed it. He said the court was confused. Now, folks, this is the highest court in the country in our province. The court wasn't confused. And then he said we have an activist court for doing this. All they did, their crime, was reading English. May I, if I may, and then I want to make one final point. This is an interview, Premier EB, April 23rd, 8, 12 a.m. This is the transcript, an interview with Stephen Quinn. I won't give you the whole question, but Stephen goes to the Premier. And so why is it the court's fault that it concluded that the word must means must? This is Mr. Eby's answer. Quote. But the intent was where there were two possible interpretations of a law in British Columbia, that the interpretation consistent with the Declaration Act be preferred by the court. End quote. Now, for the non-lawyers watching, Aaron, you and I both know what that's called. That's called an inconsistency clause, and that was an articulate answer. So I don't have an issue with how clear his answer was. The problem is that isn't the provision he put in the Interpretation Act. He put an interpretive provision in, and he's talking about an inconsistency provision. So then we're left to believe that he doesn't know the difference between what he described in his interview, and I will say articulately, and what he actually put in the Interpretation Act, and that the BC legislative drafters don't know the difference. Well, I don't believe that. I've worked with the BC legislative drafters, and at least the ones I worked with were some of the best in the country. So then you go, well, why? So we can't implement it. It's words. Remember I said about platitudes? It's all feel good. Remember what then Premier Horgan said, we're leading the world. Hey folks, we were already leading the world with section 35, is my point. Final point. Wouldn't it be nice? So there are a few things in UNDRAP that would be nice. No one will find and I'm going back to your earlier question now, Aaron. There's stuff in there about human dignity and health. How about some clean drinking water for everyone? Wouldn't that be novel if one of the governments said we're going to implement UNDRIP and make sure some of our indigenous folks and non indigenous folks on downtown East Side don't die anymore? Or how about clean drinking water for every indigenous person in the camera? Actually, sorry, I'm gonna stick my nose in on this. I I'm from a place right now. I haven't been able to drink the clean drinking water where I'm originally from in two and a half decades. In one place that I'm from out east. There would be, well, now you might get my attention on UNDRIP, but these blanket problems, it's silliness. And it's a distraction from the work that needs to be done. The mounds of lawyers working on DRIPA, and we're doing that, and life's not getting better. And then the premier said in the same interview, well, none of the good stuff would happen without DRIPA. So he mentions the mining deal, the SK Creek deal, um, some of the stuff they're doing in co-jurisdiction. I want to be clear, I'm not commenting on the validity, yay or nay, or how good those deals are. But to suggest that the only way those things, good or bad, could have happened was because of the DRIPA legislation is absolutely ridiculous. You don't need DRIPA or UNDRIP to enter into any of the contracts that the province has entered into. I completely reject that. And so at what point do we start again having the mature adult conversation about what we're actually trying to do to this province and in this province? So that's my views generally on uh, you know, I'm not anti-UNDRIP. I am anti-governments making promises to indigenous peoples and non-Indigenous Canadians that they can't meet. The feds put in, listen to listen to the Musqueam agreement that UNDRIP is now the new quote minimum standard in Canada. That's ridiculous. So it's another empty. No, it's not. It's not. Or they're deeply in breach of it. I mean, if it is, you know, I so like we gotta stop that. And this is what I mean, Aaron, but the platitudes, this is not helpful to reconciliation. What would be helpful is hey, how about we implement 35? May I give you one example and I promise I'll stop. I love giving this example. Ready? The Adams decision. Do you remember? Nobody remember this is like going back to 1996, Supreme Court of Canada. Adams, what was that about? Provincial park in the province of Quebec. In that decision, do you know what the Supreme Court of Canada directed to the crown at large? That it is, I'm gonna say it because people won't like I'm gonna say it, and you're gonna read you're gonna go, oh yeah. The crown is to make sure that any time a minister of the crown exercises discretionary authority, that they are given guidance on how to make that discretionary authority or to give that disc to use that discretionary authority vis-a-vis section 35. Really? Yeah, that's that's 30 years ago. The only example that I'm aware of, and I I I believe there might be a couple of other examples out of the thousands of laws that would have to be reviewed to actually adhere to that decision, which would be helpful to reconciliation and certainty and all these good things for business, indigenous and non-indigenous businesses, um, is the Manitoba fisheries regulations. I know that they were amended to give express guidance to government decision makers. Folks, that's 1996. I can't make it up.

SPEAKER_01 47:46

One of my questions for you is what is your thoughts on David Eby? Is this a mistake? Is this by accident? What is going on?

SPEAKER_00 47:58

Um, I usually don't get asked questions that I have to take a real pause on. Um look, I I don't know Mr. EB. I really don't. I don't know him. Um look, I I assume he's a decent human being. I do. Um I think he's severely misguided um on what he's doing on these issues. I think the lack of transparency, I think the answer that he gave concerns me. I know he knows the difference. I do. I'm not going to call anyone stupid. I assume he's legally trained. He was a former attorney general of this province. He knows the difference between an inconsistency clause and a construed as clause. I mean, this is trite for any lawyer or anybody with any degree of legal training. So I I don't know. I I don't like answering about personalities and that. I really don't. I it's a it's not an un look, I don't think it's an unfair question to be very clear. Aaron, he's in public office. Uh, I'm not, uh, but he is. And, you know, I think you hold yourself out to the public and you, you know, you open yourself up to some some critique. But what I don't like are the platitudes and the flip-flopping. I think it's shameful for any Paul. I would say that it's not directed to him personally. I would say that about any politician. Um, our economy is on the ropes here. Is on everyone knows it. And I don't care how many folks in the government shake their head. I've been at meetings lately, where the back of the room shaking, wagging their heads like I'm completely insane, talking about how bad the economy is. When you talk to everybody, we all know it's bleak right now in DC. And I'm not blaming that all on the Indigenous issue, okay? I will point the finger at our public governments, both federally and provincially, though. Yeah, markets aren't great globally, but that's actually an opportunity for the right political jurisdiction. Yeah, and you I know you've talked about this. We so I'll say this to you, Aaron, and I assume you'll agree with me. Do people, and by the way, it's not that it's all about money, everybody, but it is about an improved standard of living. Do people realize that this country could have free post-secondary education for all of our citizens? That you wouldn't have to wait two years for a hip replacement or two years to get a doctor's referral, that we could have a state-of-the-art medical system. We have great practitioners, just not enough of them. It's because of our public policy and the lack of a robust economy. And uh that means we need to make some tough decisions, and that's where leadership comes in. I I got asked a question, Aaron, about well, so you're just Mr. Fossil fuel, you know, you're against the environment. And you know what I answered? I said, uh, no, you're wrong. I actually am an environmentalist. I care about the I have children, I have family members, and I am trying to make the world a slightly better place with my limited what I can do. Uh, but I'm also a realist, and I also don't like to see people suffer. I don't like to see people die in our streets. Okay. I d I don't like the fact that we don't have an adequate mental health support system, a housing health support system, um, health system, education, lack of clean drinking water, roads, ferries. And so we need a cogent plan of how to get from fossil fuels to non-fossil fuels, too. There's no government, there's no cogent plan from any of our governments on that point. There isn't. And so again, we need to have the adult conversation. So, no, I'm not against fossil fuels if it means that my fellow citizens can have decent health care and that. But at the same time, am I in favor of not thinking about the future and about where we need to go? No, but hey, the indigenous agenda is not alone. We don't have a plan on that either. So, again, at some point, the Canadian electorate, both Indigenous and non-Indigenous, needs to start speaking up about how about putting some plans in place. So at the end of the question, uh, she was very kind to me. She said that was one of the best answers she ever got uh on her point about fossil fuels. You know, that it was at least, I think it was an certainly an honest answer for me that, you know, I I'm not in favor of just one way of creating energy, but we have got to have a mature dialogue in this country. And I think we're ready for it. We just need leaders.

SPEAKER_01 52:41

On that, we agree because uh I do think once some of the funding and resources from the federal and provincial government dry up, First Nations across BC and Canada are going to be on the same page about the need for resource extraction, the need for a growing economy. My last question for you, and I am mindful of your time, is your thoughts on the BC conservative leadership race? Uh, all of them, I think, are on the same page about wanting to repeal DRIPA. My uh some of them are putting forward ideas of constitutional reforms, um, trying to protect private property rights. My fear, uh, as you may have heard, is they want to repeal DRIPA, but they get very vague after that point about what they actually want to do to protect private property rights, to substantiate that, to um bring closure to the Cowitzing decision. What are your thoughts on the race and and how we address some of these issues?

SPEAKER_00 53:33

Uh well, you won't like my, I'm not a very good guest, but I won't comment on the race. I mean, just even getting into person, even talking about the premier, I just I I just thought my my gig, it's a fair question. I'm not qualified, probably, or competent to talk, and I haven't followed it that closely, to be honest with you. I can barely keep track of what I'm I don't even watch the local news. I find it so depressing. I don't usually even watch local news much anymore. I'm not, even though I seem to be on it a lot lately, but I don't uh I actually don't watch it and I'm not joking. Um, but look, I will go back to my point about long-term game plan, Aaron. And that I think would apply to the leadership race generally. I think it applies to our political dynamic right now in the province. I would say to anybody voting, whether it's an Indigenous government or non-Indigenous government, I think people should anybody voting for people need to focus on long-term planning. Um, I think the challenge we've got in our province right now is that we haven't had a long-term plan on these issues in a long, long time. We've never really had it in the province. That gets into your historical question when we first started today in British Columbia. We never have. We've been flying by the seat of our pants, essentially, in British Columbia since we landed on the shores. The non-Indigenous folks landed on the shores. And so we the closest we have come is the treaty process. I would like to see the treaty process reinvigorated with treaties that will provide some degree of finality and certainty, but you know, reasonable. Like, you know, that we do allow things to grow, but we also we we need to create an environment to welcome wealth back to this province, everyone. Uh I mean, otherwise, understand what you are asking for or voting for. And that means lower and lower and lower standards of living. Because rightly or, you know, I hear from people, Aaron, sometimes they don't like the wage economy. They don't like capitalism. Yeah, above my pay grade. I can't solve that. Sorry. We are in a world economy. We're a dot within a dot within a dot. Okay, in terms of the global economic. No, we don't need to be, by the way, we could be a major player. We could actually show the world how to do reconciliation. Wouldn't that be something? Show the world how you can have a vibrant economy, vibrant indigenous communities that are healthy and adding to an economy. And that's the kind of vision that see that requires a vision. We need a vision. All of us do. Indigenous, and I think we can have a common vision. I'm convinced of it. So that's what I would think about. Thank you.

SPEAKER_01 56:16

I couldn't agree with you more. I think we spent so much of our history looking at our differences and how First Nations weren't up to scale with the West. And now we're in a time where First Nations are going, look at all the problems with the West. And we just keep playing this game of who's got the better this, who's got the better that, and and how does what you have take away from what I have? And I'll say very clearly to your point, I'm nonpartisan as well because these things come in waves at times when we're in a good fiscal uh capacity, when budgets are balanced and we're gonna get a place, we can invest more in the most vulnerable. We can make those decisions, we can do that. But when we're in the time we're in now, we need sponsor responsible government, balanced budgets, um, and a plan for the future. A plan that gets everybody excited. And I think that's the tragedy of our political system federally and provincially. It's all about scarce resources, austerity, fear, and that's what's driving so much of the political decisions we're making. And we're forgetting that we are capable people. We built a railroad across Canada when no one else could see a vision for that. We did big things, we had big ideas, we had hope that we could create things for future generations rather than just for the next generation or for our current generation. We've lost a lot of hope and a lot of aspirations to what this country could be. And there's so many problems globally that I think we have an opportunity here to be adults in the room, to be leaders, to show that we can get through challenge and adversity together and be stronger. And so, Thomas Isaac, I just appreciate you for coming on today. It's so refreshing to speak to an adult.

SPEAKER_00 57:54

I'll vote, I'll vote for you. I that was excellent. And I I agree. Sorry, I don't mean to interrupt, but I agree with everything you just said. Uh, to me, this could be a huge opportunity, such a huge win-win. But we need leadership, and that means saying no sometimes. Can you imagine? You know, and but it means having a plan. And I I think there's a huge opportunity for our province in British Columbia and for our country, Canada, for Indigenous and non-Indigenous alike. And you've I feel like we're very close to it, but I also feel like we could lose it very quickly. It feels like we're at a very critical point. But thank you. And I really appreciate uh uh you giving me a little bit of a voice here on your show. It's a pleasure to be with you.

SPEAKER_01 58:40

Absolutely. We didn't get to talk about the Cowichon decision, the Musqueam Agreement and death, or any of those things, but I thought it was important to get a little bit more zoomed out about just where we are, because I think so many British Columbians, Canadians are coming uh to the show just for a broad understanding of where the heck we are. So I appreciate you being willing to make the time and for your just your thoughtful perspective on so many of these issues.

SPEAKER_00 59:00

Thank you.