By Geoff Russ and Warren Mirko
In British Columbia’s northwest, the constitutional trappings of Canadian governance are being replaced and the public is not having a say.
Across the province, more and more First Nations governments are making claims to vast swatches of land. Some of the most consequential claims are those of the Tahltan Nation, which has identified 95,933 square kilometres of land as its own territory. That’s about 11 per cent of the entire province. The consequences will be much greater than mere land transfers.
B.C. is negotiating what it calls a “comprehensive reconciliation agreement” or “foundation agreement” with the Tahltan and other groups, which is structured around recognition of Aboriginal title. The deal is slated to give enhanced control over boundaries and the local economy to the Tahltan, while still providing government cheques to the group.
The province has already begun delegating authority to the Tahltan through new agreements under Section 7 of the Declaration on the Rights of Indigenous Peoples Act (DRIPA). These agreements give the Tahltan new authority over the proposed Eskay Creek Mine Revitalization project and the existing mine, which has been in operation since the 1970s. Under the new scheme, these projects cannot go ahead without Tahltan consent. In effect, the provincial government, accountable to all British Columbians, has become a desk clerk that issues paperwork, for which it does not possess the final sign-off.
Many will find it difficult to come up with a label for this sort of agreement, but luckily one already exists: sovereignty-association.
During Quebec’s 1980 referendum on independence, Quebec’s sovereigntists desired an arrangement of exclusive authority for lawmaking, setting tax rates and conducting foreign relations while preserving economic links and a common currency with Canada; in other words, they wanted sovereignty-association. After that referendum failed, the sovereigntists envisioned a vaguely similar arrangement with Canada in the event of a victory in the 1995 referendum, which also failed.
At the time, Canada’s federal government was opposed to sovereignty-association, and was prepared to reject any proposals by Quebec that backed it. Luckily for Ottawa, the sovereignties fell short in the second referendum, meaning no arrangement was ever contemplated. That is not the case in B.C., where Indigenous sovereignty-association is being actively endorsed and facilitated by the province.
B.C. is not in the business of creating independent countries with First Nations, but the operational logic runs parallel to the plan for sovereignty association with Quebec. The Tahltan will exercise territorial authority with their government while Canada holds the bag that makes financial, economic and service integration possible. In effect, the Tahltan and presumably many more First Nations will have functional sovereignty, and administrative association with Canada.
Legally, Section 7 of DRIPA makes this possible by enabling statutory powers to be exercised jointly with an Indigenous governing body, or made conditional on that body’s consent. It is a provision that goes far beyond the ordinary constitutional duty to consult.
Canada’s Supreme Court has stated that unproven Indigenous land and title claims do not give a veto to unsatisfied claimants where sufficient consultation has occurred. Nevertheless, B.C. has decided to arbitrarily require the consent of these claimants to allow major projects to move forward. That is a much higher bar.
A requirement for the province to consult in the course of making a decision means that it must listen to and accommodate First Nations, while a requirement to obtain First Nations consent means that a First Nations government can prevent the province from making its decision altogether. For the Tahltan, it’s clear they mean consent when they say “mining in Tahltan Territory will either happen the Tahltan way or not at all.” To call that collaboration is like calling a roadblock a highway.
The 2020 Shared Prosperity Agreement with Tahltan, amended in 2021, says the “foundation agreement” negotiations will depend upon recognition of Tahltan Aboriginal title and rights in Tahltan territory. That agreement is exploring land transfers, economic-development funding and a movement toward joint and consent-based decision-making.
Meanwhile, the Eskay Creek and Red Chris project agreements are transforming that into reality, and Ottawa’s July 2026 commitment to determine “mechanisms to participate in and contribute to the Tahltan Foundation Agreement … including through separate agreements or arrangements,” which brings the federal government toward the table. The final “foundation agreement” is still being negotiated, but the fact remains that territorial authority, consent for resource projects and revenue are on the table.
There is already precedent for this. B.C.’s 2024 deal with the Haida Nation granted the group title across Haida Gwaii, and states that the Haida Nation exercises jurisdiction according to Haida title and laws. However, B.C. and local governments on Haida Gwaii will continue delivering essential services relating to health, education and transportation.
Everything has to change, these deals seem to say, apart from that which is costly and inconvenient. The Haida governing body gains its title-based authority, while the province retains its taxpayer-funded obligations, all while non-Haida residents and businesses are left out in the cold to discover who actually controls what.
The primary defect in sovereignty-association by administrative agreement is that it keeps authority and accountability separated. An Indigenous government is accountable only to its own citizens, while the provincial government is accountable to every British Columbian. If the province gives a numerically small, membership-based government decisive territorial power over projects, land or resources affecting non-members, and the wider provincial tax base continues to provide services within the territory in question, then provincial ministers will bear the political blame for all of it. This is how democratic responsibility becomes muddied.
National Post
