THE HAGUE — The International Criminal Court (ICC) has come under fire for its politically motivated prosecutions of Israel’s prime minister and former defence minister, but the court’s own actions expose it as an unserious institution that’s wholly incapable of fulfilling its role of prosecuting the most heinous of international crimes.

The court’s biggest problem is its consistent inaction. In July and August, the court only has one event relating to ongoing cases on its agenda. In total, only six active cases are currently being heard. Not only is it inactive, it also faces serious difficulties in apprehending those it indicts, which can partially explain its inactivity.

A further issue is the alleged sexual misconduct of the court’s former lead prosecutor, Kharim Khan, who issued the arrest warrant for Israeli Prime Minister Benjamin Netanyahu. Khan was suspended from the ICC in June over sexual misconduct allegations levelled by his former assistant. On Friday, the court’s 125 member states voted to permanently remove Khan as chief prosecutor.

The scandal has severely degraded the court’s credibility, since Khan had a substantial say in the issuance of arrest warrants. If the character and judgment of its lead prosecutor cannot be trusted, then neither can the court itself.

Two weeks ago, the U.S. State Department charged that the ICC poses an “intolerable threat” to America and its allies, and called on other nations to reject the court’s authority. Although the United States is not a signatory to the Rome Statute, in 2020, the ICC launched an investigation into alleged war crimes committed by U.S. forces in Afghanistan, thereby asserting its right to usurp American sovereignty.

The ICC has only issued 61 arrest warrants in its history, and only 22 have appeared before the court. How is it that an institution that’s supposed to be holding those who commit the most serious crimes accountable is looking into so-called American crimes, but has only issued 61 arrest warrants since its founding?

Should Canada, because of its peacekeeping past, believe that it will not one day become a target of the ICC? Surely not. Canadian heroes have fought alongside Americans in many places, including Afghanistan. Canada also supplies its allies in times of war.

There is less room between Canada and the ICC than there is between the U.S. and the ICC, since Canada is a signatory to the Rome Statute, and the court still sees fit to investigate Americans and issue arrest warrants for our allies. It would surely not be in Canada’s interests to have an international court attempting to arrest government ministers or other Canadian citizens.

The International Criminal Court says that it exists to hold those who commit the most serious crimes accountable. However, the numerous issues with the ICC show that the court itself needs accountability. While relations between Canada and the United States have been strained as of late, perhaps our neighbours to the south have a point about international institutions like the ICC that have little respect for the sovereignty of the countries that empower it.

National Post

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In 2024, a mandatory course for B.C. lawyers referred to the “discovery of an unmarked burial site containing the bodies of 215 children on the former Kamloops Indian Residential School grounds” which “(confirmed) what survivors have been saying all along.” When one lawyer proposed a correction, as no graves were ever found, the B.C. Law Society publicly disparaged him. He sued for defamation — but now, the trial has been called off.

Instead, criminal defence lawyer Jim Heller settled his case with the law society, a development that was made public in a Glacier Media report on Monday . The terms are confidential. We won’t know what each side agreed to do to shelve the litigation, or who the court would have sided with in the end. Much like the supposed “graves” that the local First Nation refuses to excavate at the Kamloops residential school, the public won’t get any closure on this one.

“I feel like I’m escaping the looking glass,” Heller told me over the phone on Thursday. “I’m escaping Wonderland a little bit.”

Heller’s saga began when he spoke up about the wording in the Indigenous competency course mandated for all lawyers by the B.C. Law Society. As things stood back then, all members of the profession had to read through materials endorsed by their professional overseers to maintain the ability to practice — only, the course materials were objectively false . The thousands of professionals gatekeeping everything from real estate deals to criminal sentencing — professionals from which the next generation of B.C.’s judges would be drawn — were being told to internalize the unproven claim that the bodies of children were found at the Kamloops residential school grounds.

Attempts to contact those responsible for the course to spur a correction went ignored in the summer of 2024. Nevertheless, there was a democratic fix available. Heller and colleague Burnaby lawyer Mark Berry advanced a motion at the law society’s annual general meeting that fall, proposing the use of the words “potentially unmarked burial site” to more carefully reflect reality; they also moved to have the reference to 215 bodies of children removed, along with the assertion that the “discovery” confirmed what survivors had been saying.

In response, a group called the B.C. First Nations Justice Council released a statement calling Heller’s proposal a “Racist Resolution” that contains “alarming Residential School denialism.”

“It is unconscionable that efforts be made to revise this history and sanitize the genocidal atrocities committed against Indigenous people in B.C. and Canada,” it said.

The very next day, the B.C. Law Society published a news release about the B.C. First Nations Justice Council statement, adding its own commentary to the mix: “The resolution submitted by Mr. Heller and Mr. Berry only highlights the need for the (Indigenous course) and confirms much work remains to be done to increase knowledge and understanding, continue our efforts of advancing meaningful reconciliation with Indigenous people, and eliminate racism in our profession.”

The motion ultimately failed : while it had garnered support from 1,499 members of the law society, another 1,683 opposed it, with 590 abstentions.

That October, Heller began asking the law society to remove the statement about his motion from the website. He took it to be an accusation of racism. The law society didn’t budge, however, so he embarked on his lawsuit in February 2025.

Interestingly, Heller says that his Indigenous clients have been made aware of his efforts to correct the training materials, and the vast majority have been supportive: “We have good, good relationships and they understand the principles behind it.”

There were some interesting twists in the litigation. During the summer of 2025, the B.C. Law Society began filing documents in court to support its defence. Heller referred to these documents in an affidavit afterward — only to have it taken out of public view entirely. A judge sealed that affidavit in August 2025 to protect the privacy of a former law society employee who had personal and family experience with “colonialism, colonial harm, and the effect of Residential Schools.”

“I reject the notion that because a person chooses to share certain information about themselves or their families in a public context, that they have somehow waived their right to privacy over any related information, including information that may be shared in a personal, non-public context,” wrote the judge in his decision to seal the affidavit. “Here, it is apparent the information … was not intended for the public sphere.”

Evidently, an Indigenous employee of the law society had said something relevant to the matter at hand, but it wasn’t up to the public to know.

It was around this time that the B.C. Law Society began to retreat . In August 2025, it removed its disavowal of Heller from its website and changed the mandatory Indigenous course materials. The course currently speaks of “200 targets of interest at the Kamloops site that are probable burials.”

This was followed by an odd non-apology by the law society in May 2026, stating that, “To the degree it was understood by some to have defamed Mr. Heller, the Law Society wishes to confirm that was not its intention.”

Taken in context with the settlement, it’s a win for Heller. The B.C. Law Society, once staunch in standing by the falsities it had published, quietly retracted them right around the same time that litigation was heating up. There was smoke, but the fire of a public win was doused before it could ever shed light on the moral panic that gripped Canada in 2021.

And who knows; perhaps the courts can’t be trusted to provide that anymore: it’s B.C. judges who keep allowing homeless people to claim property rights over public spaces like it’s the age of settlement; it’s B.C. judges who have begun blowing up the province’s land title system over historic grievances. Judges nationwide are provided training that predisposes them to siding with Indigenous causes. The cold reality is that the courts have political biases, and that testing them is a gamble.

But in other ways, old professional principles still work. Heller, a defence lawyer, took particular issue with the graves panic that hit Canada in 2021 because of how starkly it contrasted with the workings of a criminal trial. To prove someone’s guilt requires extensive evidence — and, in mounting a proper defence, the “devil might be in the details.” When it came to the graves and the accusations of an ongoing genocide, the country never got that treatment.

“My issue is just we’ve got to be truthful with our history with each other,” Heller said.

“We all deserve the presumption of innocence.”

National Post

In 2024, a mandatory course for B.C. lawyers referred to the “discovery of an unmarked burial site containing the bodies of 215 children on the former Kamloops Indian Residential School grounds” which “(confirmed) what survivors have been saying all along.” When one lawyer proposed a correction, as no graves were ever found, the B.C. Law Society publicly disparaged him. He sued for defamation — but now, the trial has been called off.

Instead, criminal defence lawyer Jim Heller settled his case with the law society, a development that was made public in a Glacier Media report on Monday . The terms are confidential. We won’t know what each side agreed to do to shelve the litigation, or who the court would have sided with in the end. Much like the supposed “graves” that the local First Nation refuses to excavate at the Kamloops residential school, the public won’t get any closure on this one.

“I feel like I’m escaping the looking glass,” Heller told me over the phone on Thursday. “I’m escaping Wonderland a little bit.”

Heller’s saga began when he spoke up about the wording in the Indigenous competency course mandated for all lawyers by the B.C. Law Society. As things stood back then, all members of the profession had to read through materials endorsed by their professional overseers to maintain the ability to practice — only, the course materials were objectively false . The thousands of professionals gatekeeping everything from real estate deals to criminal sentencing — professionals from which the next generation of B.C.’s judges would be drawn — were being told to internalize the unproven claim that the bodies of children were found at the Kamloops residential school grounds.

Attempts to contact those responsible for the course to spur a correction went ignored in the summer of 2024. Nevertheless, there was a democratic fix available. Heller and colleague Burnaby lawyer Mark Berry advanced a motion at the law society’s annual general meeting that fall, proposing the use of the words “potentially unmarked burial site” to more carefully reflect reality; they also moved to have the reference to 215 bodies of children removed, along with the assertion that the “discovery” confirmed what survivors had been saying.

In response, a group called the B.C. First Nations Justice Council released a statement calling Heller’s proposal a “Racist Resolution” that contains “alarming Residential School denialism.”

“It is unconscionable that efforts be made to revise this history and sanitize the genocidal atrocities committed against Indigenous people in B.C. and Canada,” it said.

The very next day, the B.C. Law Society published a news release about the B.C. First Nations Justice Council statement, adding its own commentary to the mix: “The resolution submitted by Mr. Heller and Mr. Berry only highlights the need for the (Indigenous course) and confirms much work remains to be done to increase knowledge and understanding, continue our efforts of advancing meaningful reconciliation with Indigenous people, and eliminate racism in our profession.”

The motion ultimately failed : while it had garnered support from 1,499 members of the law society, another 1,683 opposed it, with 590 abstentions.

That October, Heller began asking the law society to remove the statement about his motion from the website. He took it to be an accusation of racism. The law society didn’t budge, however, so he embarked on his lawsuit in February 2025.

Interestingly, Heller says that his Indigenous clients have been made aware of his efforts to correct the training materials, and the vast majority have been supportive: “We have good, good relationships and they understand the principles behind it.”

There were some interesting twists in the litigation. During the summer of 2025, the B.C. Law Society began filing documents in court to support its defence. Heller referred to these documents in an affidavit afterward — only to have it taken out of public view entirely. A judge sealed that affidavit in August 2025 to protect the privacy of a former law society employee who had personal and family experience with “colonialism, colonial harm, and the effect of Residential Schools.”

“I reject the notion that because a person chooses to share certain information about themselves or their families in a public context, that they have somehow waived their right to privacy over any related information, including information that may be shared in a personal, non-public context,” wrote the judge in his decision to seal the affidavit. “Here, it is apparent the information … was not intended for the public sphere.”

Evidently, an Indigenous employee of the law society had said something relevant to the matter at hand, but it wasn’t up to the public to know.

It was around this time that the B.C. Law Society began to retreat . In August 2025, it removed its disavowal of Heller from its website and changed the mandatory Indigenous course materials. The course currently speaks of “200 targets of interest at the Kamloops site that are probable burials.”

This was followed by an odd non-apology by the law society in May 2026, stating that, “To the degree it was understood by some to have defamed Mr. Heller, the Law Society wishes to confirm that was not its intention.”

Taken in context with the settlement, it’s a win for Heller. The B.C. Law Society, once staunch in standing by the falsities it had published, quietly retracted them right around the same time that litigation was heating up. There was smoke, but the fire of a public win was doused before it could ever shed light on the moral panic that gripped Canada in 2021.

And who knows; perhaps the courts can’t be trusted to provide that anymore: it’s B.C. judges who keep allowing homeless people to claim property rights over public spaces like it’s the age of settlement; it’s B.C. judges who have begun blowing up the province’s land title system over historic grievances. Judges nationwide are provided training that predisposes them to siding with Indigenous causes. The cold reality is that the courts have political biases, and that testing them is a gamble.

But in other ways, old professional principles still work. Heller, a defence lawyer, took particular issue with the graves panic that hit Canada in 2021 because of how starkly it contrasted with the workings of a criminal trial. To prove someone’s guilt requires extensive evidence — and, in mounting a proper defence, the “devil might be in the details.” When it came to the graves and the accusations of an ongoing genocide, the country never got that treatment.

“My issue is just we’ve got to be truthful with our history with each other,” Heller said.

“We all deserve the presumption of innocence.”

National Post

There has been minor hubbub this week down at the Laurentian Tennis and Raquet Club — not a real place — over a new Abacus Data poll suggesting a generational divide among Canadians when it comes to their most basic views on democracy. Among poll respondents aged 60-plus, 78 per cent felt “democracy is always preferable to any other kind of government.” Among 18-to-29-year-olds, it was just 43 per cent. In that same younger cohort, fully 13 per cent agreed that “for someone like me, it doesn’t matter what kind of government we have.”

Those certainly aren’t encouraging numbers. But I don’t think they’re necessarily evidence of some failure of civics education, as former cabinet minister Jason Kenney and several commentators suggested. I thought Conservative Senator Leo Housakos hit much closer to the mark , arguing the findings should be “a red flag to all of us who play a role in public institutions that we need to be better.”

Indeed, these results really shouldn’t be surprising. Your average Canadian aged 60-and-over has simply had it much better than their kids and grandkids. Governments talk a reasonably big game about fixing things as basic as housing affordability, but progress has been maddeningly slow and piecemeal.

Younger Canadians should be hacked off. And they are not wrong to perceive that it often doesn’t make a huge difference who’s in charge in Ottawa or their provincial capital, or even what democratic system (or otherwise) they operate under. Problems either get solved or they don’t.

That doesn’t explain why federal NDP Leader Avi Lewis doesn’t seem super-interested in running for a seat in the House of Commons, however. He’s not going to solve anyone’s problems without one.

Of six forthcoming byelections, one is in an existing NDP riding — Rosemont—La Petite-Patrie, the party’s last redoubt in Quebec, which Alexandre Boulerice has vacated in order to run provincially. Another is Beaches—East York, where the Liberals have been dominant for more than a decade. But the NDP has held it in the past, and if there’s a riding where Lewis’s name-recognition and resumé might make a dent, that could be one. He hasn’t many of those to choose from.

Instead, reportedly, former Toronto city councillor Mike Layton — son of late NDP leader Jack Layton — is eyeing the party’s nomination in Beaches—East York. Name recognition could take Layton much further in a centre-left Toronto riding than Lewis, I suspect. Jack Layton is still fresh in the minds of most core New Democrats, and he knew how to expand the party’s appeal.

But Mike Layton isn’t the party leader. He could have run for the leadership, and didn’t. One can understand Lewis’s hesitation about strong-arming a sitting Dipper out of a safe seat in British Columbia. But not running at all is a very odd look from a leader who clearly fancies himself quite an orator and who, by rights, should be haranguing Prime Minister Mark Carney every opportunity he gets on the floor of the House.

Is that not the job? I sure thought that was the job, even if Abacus suggests kids aren’t so sure. Most everyone else seems to think so, federally at least. Before Carney did it, John Turner was the last Liberal leader to win the party leadership (and the Prime Minister’s Office) without a seat in the House. They both won seats in the ensuing general elections, as a matter of correctly perceived necessity.

On the Conservative side of the aisle, Pierre Poilievre certainly saw the imperative to get himself back in the House of Commons after losing his Ottawa-area riding last year. And quite rightly. Question period is rarely an edifying spectacle — donot take children there! — but Parliament is where politicians like Poilievre and Lewis, if they’re worth their fight-for-the-little-guy bona fides, should be making their case against this elbows-akimbo Liberal government.

For all its travails and dramatic decline in the polls, the federal NDP has gotten one thing right in recent years: It doesn’t generally kick out a leader after a single election loss (unless that leader is Tom Mulcair). None of Stéphane Dion, Michael Ignatieff, Andrew Scheer or Erin O’Toole got a second chance with the Liberals and Conservatives, respectively. Poilievre has bucked that minor trend (so far) on the Conservative side of the aisle — and that’s a party whose supporters actually expect and want to win elections.

If Jagmeet Singh could hang on to the NDP leadership as long as he did, even as he steered the party near oblivion , Lewis surely needn’t fear being defenestrated should he contest Beaches—East York and lose a reasonably competitive byelection fight. He’d be on the news, quite apart from anything else. Certainly, Lewis can’t hope to do any better than Singh did without a seat in the Commons. And if he doesn’t think he can win one, or that it’s even worth trying ASAP, perhaps the party didn’t make the wisest choice.

National Post
cselley@postmedia.com

• Chris Selley: OK, we’ve won on stigmatizing tobacco. Why not try it for hard drugs?
• Chris Selley: Marvel at the politicians’ performative idiocy on Israel

There has been minor hubbub this week down at the Laurentian Tennis and Raquet Club — not a real place — over a new Abacus Data poll suggesting a generational divide among Canadians when it comes to their most basic views on democracy. Among poll respondents aged 60-plus, 78 per cent felt “democracy is always preferable to any other kind of government.” Among 18-to-29-year-olds, it was just 43 per cent. In that same younger cohort, fully 13 per cent agreed that “for someone like me, it doesn’t matter what kind of government we have.”

Those certainly aren’t encouraging numbers. But I don’t think they’re necessarily evidence of some failure of civics education, as former cabinet minister Jason Kenney and several commentators suggested. I thought Conservative Senator Leo Housakos hit much closer to the mark , arguing the findings should be “a red flag to all of us who play a role in public institutions that we need to be better.”

Indeed, these results really shouldn’t be surprising. Your average Canadian aged 60-and-over has simply had it much better than their kids and grandkids. Governments talk a reasonably big game about fixing things as basic as housing affordability, but progress has been maddeningly slow and piecemeal.

Younger Canadians should be hacked off. And they are not wrong to perceive that it often doesn’t make a huge difference who’s in charge in Ottawa or their provincial capital, or even what democratic system (or otherwise) they operate under. Problems either get solved or they don’t.

That doesn’t explain why federal NDP Leader Avi Lewis doesn’t seem super-interested in running for a seat in the House of Commons, however. He’s not going to solve anyone’s problems without one.

Of six forthcoming byelections, one is in an existing NDP riding — Rosemont—La Petite-Patrie, the party’s last redoubt in Quebec, which Alexandre Boulerice has vacated in order to run provincially. Another is Beaches—East York, where the Liberals have been dominant for more than a decade. But the NDP has held it in the past, and if there’s a riding where Lewis’s name-recognition and resumé might make a dent, that could be one. He hasn’t many of those to choose from.

Instead, reportedly, former Toronto city councillor Mike Layton — son of late NDP leader Jack Layton — is eyeing the party’s nomination in Beaches—East York. Name recognition could take Layton much further in a centre-left Toronto riding than Lewis, I suspect. Jack Layton is still fresh in the minds of most core New Democrats, and he knew how to expand the party’s appeal.

But Mike Layton isn’t the party leader. He could have run for the leadership, and didn’t. One can understand Lewis’s hesitation about strong-arming a sitting Dipper out of a safe seat in British Columbia. But not running at all is a very odd look from a leader who clearly fancies himself quite an orator and who, by rights, should be haranguing Prime Minister Mark Carney every opportunity he gets on the floor of the House.

Is that not the job? I sure thought that was the job, even if Abacus suggests kids aren’t so sure. Most everyone else seems to think so, federally at least. Before Carney did it, John Turner was the last Liberal leader to win the party leadership (and the Prime Minister’s Office) without a seat in the House. They both won seats in the ensuing general elections, as a matter of correctly perceived necessity.

On the Conservative side of the aisle, Pierre Poilievre certainly saw the imperative to get himself back in the House of Commons after losing his Ottawa-area riding last year. And quite rightly. Question period is rarely an edifying spectacle — donot take children there! — but Parliament is where politicians like Poilievre and Lewis, if they’re worth their fight-for-the-little-guy bona fides, should be making their case against this elbows-akimbo Liberal government.

For all its travails and dramatic decline in the polls, the federal NDP has gotten one thing right in recent years: It doesn’t generally kick out a leader after a single election loss (unless that leader is Tom Mulcair). None of Stéphane Dion, Michael Ignatieff, Andrew Scheer or Erin O’Toole got a second chance with the Liberals and Conservatives, respectively. Poilievre has bucked that minor trend (so far) on the Conservative side of the aisle — and that’s a party whose supporters actually expect and want to win elections.

If Jagmeet Singh could hang on to the NDP leadership as long as he did, even as he steered the party near oblivion , Lewis surely needn’t fear being defenestrated should he contest Beaches—East York and lose a reasonably competitive byelection fight. He’d be on the news, quite apart from anything else. Certainly, Lewis can’t hope to do any better than Singh did without a seat in the Commons. And if he doesn’t think he can win one, or that it’s even worth trying ASAP, perhaps the party didn’t make the wisest choice.

National Post
cselley@postmedia.com

• Chris Selley: OK, we’ve won on stigmatizing tobacco. Why not try it for hard drugs?
• Chris Selley: Marvel at the politicians’ performative idiocy on Israel

In a recent op-ed in the National Post, Josh Dehaas of the Canadian Constitution Foundation wrote : “Last September, many Canadians were shocked to learn through a Haida Nation news release that British Columbia and Canada had gone behind closed doors in judges’ chambers and signed an agreement that recognized Aboriginal title over all of Haida Gwaii. Without having to prove their title in court, the Haida gained constitutionally protected rights over the entire archipelago.”

His basic point was that governments have been negotiating Aboriginal title and then seeking court declarations of such title over vast parts of British Columbia — areas that would almost assuredly never pass the test of being subject to Aboriginal title if litigated in the courts.

The legal subterfuge to which Dehaas alluded — a process of concurrent bilateral negotiations between the Haida and the provincial and federal governments — goes back more than a few years.

Both the B.C. NDP government and the federal Liberals secretly negotiated with the Haida independent but largely mirror agreements, with the goal of legally recognizing Aboriginal title over the entirety of the Haida Gwaii archipelago (formerly called the Queen Charlotte Islands), including both Crown and private lands, rather than continuing to insist that the title claim be proven in the courts.

The Haida refused to negotiate a treaty (which would have involved proper tripartite negotiations with B.C. and the federal government), and instead negotiated and finalized in July 2024 a bilateral agreement with the B.C. government called the “ Rising Tide Agreement .”

At the same time however, they also negotiated a very similar agreement with Ottawa for the same territorial Aboriginal title recognition. This was finalized with the federal government in November of 2024 and is called the “ Big Tide (Low Water) Agreement. ”

On Sept. 5, 2025, the B.C. Supreme Court was asked by the Haida and the federal and provincial governments to recognize the “negotiated” agreements and issue a Consent Order declaring Aboriginal title recognized and affirmed by Section 35 of the Constitution to the entirety of the Haida archipelago, including all private fee simple lands.

This Aboriginal title consent declaration covers about a million hectares of land, water and seabed. By comparison, the Cowichan case in Richmond, B.C., found Aboriginal title to about 324 hectares of land.

The Consent Order regarding Aboriginal title to Haida Gwaii was not a court declaration borne of a lengthy Aboriginal title trial ultimately decided by the courts as in the Cowichan case, but rather a court deferring to what it was told those three parties had “agreed to” for a title outcome on Haida Gwaii.

To repeat what Josh Dehaas rightly said in his op-ed:

“Without having to prove their title in court, the Haida gained constitutionally protected rights over the entire archipelago.”

Since the federal government, British Columbia and the Haida agreed to the Consent Order, there are no other parties to that litigation who would be in the position to appeal the declaration by the B.C. Supreme Court. As soon as the declaration was issued by the court, Aboriginal title under Section 35 crystallized as a constitutional right that can never be extinguished except by way of a future constitutional amendment either removing Section 35 from Canada’s Constitution or removing the concept of “Aboriginal title” from Section 35.

There is little chance that the Haida, had they proceeded with a court case to prove the extent of their Aboriginal title on Haida Gwaii, would have obtained a judgment that confirmed they had met the test for Aboriginal land title set out by the Supreme Court of Canada in the 1997 Delgamuukw and 2014 Tsilhqot’in decisions.

Dehaas also asks if this process is about to repeat with the Tahltan First Nation in northwestern B.C. over a territory that is roughly the size of Portugal. The only way it won’t is for the British Columbia public at large to shout “Stop this now,” and to loudly demand that their elected representatives actually listen to them on this issue, instead of carrying on with secret Aboriginal title negotiations to rapidly divest the public of vast areas of the Crown land base of British Columbia, without any testing of the legal validity of their assumptions.

Special to National Post

Geoffrey S. Moyse, KC, is a retired senior lawyer who served as legal counsel to the Province of B.C., advising six successive governments on Aboriginal law over more than 30 years. He is principal at Moyse Law and an adviser to the Public Land Use Society.

• Josh Dehaas: Aboriginal title claims should be proven in courts, not signed away by governments
• Opinion: Aboriginal title cases should take into account the taxpayer money paid to First Nations

In a recent op-ed in the National Post, Josh Dehaas of the Canadian Constitution Foundation wrote : “Last September, many Canadians were shocked to learn through a Haida Nation news release that British Columbia and Canada had gone behind closed doors in judges’ chambers and signed an agreement that recognized Aboriginal title over all of Haida Gwaii. Without having to prove their title in court, the Haida gained constitutionally protected rights over the entire archipelago.”

His basic point was that governments have been negotiating Aboriginal title and then seeking court declarations of such title over vast parts of British Columbia — areas that would almost assuredly never pass the test of being subject to Aboriginal title if litigated in the courts.

The legal subterfuge to which Dehaas alluded — a process of concurrent bilateral negotiations between the Haida and the provincial and federal governments — goes back more than a few years.

Both the B.C. NDP government and the federal Liberals secretly negotiated with the Haida independent but largely mirror agreements, with the goal of legally recognizing Aboriginal title over the entirety of the Haida Gwaii archipelago (formerly called the Queen Charlotte Islands), including both Crown and private lands, rather than continuing to insist that the title claim be proven in the courts.

The Haida refused to negotiate a treaty (which would have involved proper tripartite negotiations with B.C. and the federal government), and instead negotiated and finalized in July 2024 a bilateral agreement with the B.C. government called the “ Rising Tide Agreement .”

At the same time however, they also negotiated a very similar agreement with Ottawa for the same territorial Aboriginal title recognition. This was finalized with the federal government in November of 2024 and is called the “ Big Tide (Low Water) Agreement. ”

On Sept. 5, 2025, the B.C. Supreme Court was asked by the Haida and the federal and provincial governments to recognize the “negotiated” agreements and issue a Consent Order declaring Aboriginal title recognized and affirmed by Section 35 of the Constitution to the entirety of the Haida archipelago, including all private fee simple lands.

This Aboriginal title consent declaration covers about a million hectares of land, water and seabed. By comparison, the Cowichan case in Richmond, B.C., found Aboriginal title to about 324 hectares of land.

The Consent Order regarding Aboriginal title to Haida Gwaii was not a court declaration borne of a lengthy Aboriginal title trial ultimately decided by the courts as in the Cowichan case, but rather a court deferring to what it was told those three parties had “agreed to” for a title outcome on Haida Gwaii.

To repeat what Josh Dehaas rightly said in his op-ed:

“Without having to prove their title in court, the Haida gained constitutionally protected rights over the entire archipelago.”

Since the federal government, British Columbia and the Haida agreed to the Consent Order, there are no other parties to that litigation who would be in the position to appeal the declaration by the B.C. Supreme Court. As soon as the declaration was issued by the court, Aboriginal title under Section 35 crystallized as a constitutional right that can never be extinguished except by way of a future constitutional amendment either removing Section 35 from Canada’s Constitution or removing the concept of “Aboriginal title” from Section 35.

There is little chance that the Haida, had they proceeded with a court case to prove the extent of their Aboriginal title on Haida Gwaii, would have obtained a judgment that confirmed they had met the test for Aboriginal land title set out by the Supreme Court of Canada in the 1997 Delgamuukw and 2014 Tsilhqot’in decisions.

Dehaas also asks if this process is about to repeat with the Tahltan First Nation in northwestern B.C. over a territory that is roughly the size of Portugal. The only way it won’t is for the British Columbia public at large to shout “Stop this now,” and to loudly demand that their elected representatives actually listen to them on this issue, instead of carrying on with secret Aboriginal title negotiations to rapidly divest the public of vast areas of the Crown land base of British Columbia, without any testing of the legal validity of their assumptions.

Special to National Post

Geoffrey S. Moyse, KC, is a retired senior lawyer who served as legal counsel to the Province of B.C., advising six successive governments on Aboriginal law over more than 30 years. He is principal at Moyse Law and an adviser to the Public Land Use Society.

• Josh Dehaas: Aboriginal title claims should be proven in courts, not signed away by governments
• Opinion: Aboriginal title cases should take into account the taxpayer money paid to First Nations