PODCAST: Tom Isaac

“I’m really trying to stay out of the politics of all this, but it’s very difficult to when the behaviour that I see is not acting in the public interest and I believe is negligent.”—Tom IsaacPodcast teaser: ‘Perversity factor’Listen to a clip from the podcast.[Upgrade to Paid]Tom Isaac pulls few punches.He has been around the block on the Indigenous law circuit. Make that many blocks. And all levels of court, in provincial, territorial and federal jurisdictions across Canada, representing businesses, industries and governments on Aboriginal law and related constitutional matters, and more.He hasn’t just written dozens of legal articles, news OpEds, 17 books, and multiple editions of legal textbooks, he wrote THE book on Aboriginal Law. His latest is timely as ever and written with colleague Grace Wu: Canada and the UN Declaration on the Rights of Indigenous Peoples.The point being, he knows Aboriginal and constitutional law. Not only that, he led negotiations on the single largest class action suit settlement for residential school students in the country’s history, resulting in a $2.8 billion settlement held in trust and to be disbursed over 20 years.Going ‘to the wall’This week, the Premier told a gathering of business leaders he will “go to the wall” to defend private property but, four months out from the Cowichan decision and his government has yet to do anything concrete to make good on this promise. This week, he announced a stopgap measure by way of loan guarantees for landowners who can’t get financing because of the Cowichan ruling..Despite the escalating pressure, Eby has so far rejected calls from opposition Conservative legislators, Independent MLAs, the business community, Indigenous law experts and others to repeal DRIPA. He said his government will consult with Indigenous leaders and the business community, implying it may come up with amendments in the spring.None of which reassures Isaac.“An amendment is possible in a perfect world. The problem is, this isn’t a perfect world, and we’re dealing with a government that has not shown itself to be trustworthy...”Gitxaala court decisionThen there was last week’s Gitxaala v. British Columbia BC Appeal Court decision which overturned a lower court decision and ruled DRIPA is not just inspirational, but does indeed incorporate UNDRIP into B.C law. It is therefore “justiciable” – a law that can be used in a trial and upheld in court. The court also held, as per DRIPA, that all BC laws must conform to UNDRIP, effective immediately.The Premier has denounced the ruling, calling the court “confused” and “unhelpful” even going so far as to saying the judiciary “overreached” in determining DRIPA was an enforceable law.To which Isaac says, “I don’t think the court was confused at all. I think it was a very articulate, well-written decision.”On treatiesThe recent Cowichan Tribes v. Canada court decision that recognized Aboriginal title over about 800 acres of private, public and industrial land in Richmond landed like shock therapy for many British Columbians, but while the issues imploding under Premier David Eby’s watch have been inflamed by the harried pitch of his reconciliation agenda, problems on the file have been building for a long time, said Isaac..“This has been decades in the making of the lack of a sustainable, long-term public policy framework in this province. The closest we have had to it started with the Glen Clark government in the 90s with the treaty process.”Isaac started his career in Saskatchewan and the Northwest Territories, but he was chief treaty negotiator for the B.C. government in the Clark era.“I’m a big fan of the treaty process. Now, the devil’s in the detail. I’m not giving a pass for every single treaty... But at least that’s a strategy.”Cowichan rulingAs for the Cowichan court ruling, Isaac pushed back against the assurance by some that that nothing material has changed for property owners in Richmond on recognized Aboriginal title land. As Cowichan’s lawyer conceded, property owners may now have to obtain First Nations consent to make changes to their property or to sell their home.“Any government, public or indigenous, has no business telling me what to do with my property. Sorry, I said it. And to suggest that there’s no effect on third parties. All you need to do though, is just come to us for consent. I mean, come on. Let’s all be serious.”Whether or not the Cowichan want to possess the private lands is irrelevant to the fact there is now a cloud on people’s private property title, he said.“What lender is going to go, ‘Well, great, they’re not going after it today. I’ll lend money on the basis that they’re not going to seek possession of it on a Wednesday. But man, if Thursday rolls around, you know, all bets are off.’”Haida land title agreementMany might think the Cowichan decision was the first time Aboriginal title was recognized on private property. While it was the first time a Canadian court had done so, more than a year earlier, the BC government negotiated the precedent-setting Haida Land Title Agreement which also recognizes Aboriginal title on private property. The Haida agreement went beyond previous court rulings in another way too, recognizing title on the entirely of Haida’s land claim without the nation having to legally prove title.Premier Eby hailed it as the template for future reconciliation agreements and a peak achievement of his career.Isaac describes the Haida land title agreement as “one of the most poorly drafted agreements I’ve seen in my career in this area.” His comments, he said are absolutely not directed at the Haida, but rather the public government of BC that negotiated it.He said the province ignored all commentary and legal advice from many sources, stating “serious, serious concerns” with the Haida agreement and not only went ahead and signed it, but after the Cowichan Aboriginal title ruling,the government quietly slipped into court and had the agreement affirmed in a BC Supreme Court order and didn’t “change a comma.”“Shame on the government of BC,” he said.“That does not further reconciliation in our province.”[Upgrade to Paid]All this and more in our conversation.Let us know what you think!FranPodcast producer: Rob ShawFeedback: [email protected] This is a public episode. 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