By Warren Mirko and Geoffrey Moyse, March 2, 2026
The growing use of political terms such as “Indigenous” and “settler” is dividing Canadians along lines the Constitution does not recognize. In British Columbia, the government has elevated these labels from legal descriptors to timeless moral identities, reshaping who holds authority and who it serves.
When identity becomes a source of moral authority, terms like “asserted territory” by First Nations begin to be treated as settled jurisdiction. Claims over public land acquire political force even where their legal foundation remains unresolved through title or treaty. Now consider what happens when the government itself describes much of British Columbia as “stolen land” and a “colonial mistake.” It casts existing law, private property, resource tenures, and public access as morally suspect by default. Decisions favour alignment with that narrative, not those grounded in statute or equal citizenship.
When the outcome has already been decided, legality is beside the point. Does the province retain authority over its lands? Under practices influenced by UNDRIP, the answer appears to be “it depends” – not on constitutional law, but on politics.
Premier Dave Eby insists BC’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) is consistent with Canadian law. If so, it should have nothing to fear from judicial review. Yet efforts to sidestep the courts suggest discomfort with having its scope tested. If DRIPA requires all provincial laws to conform to it, the implications are sweeping. All of the province is subject to overlapping ancestral claims, from foreshore and water to highways, public land, and even airspace. Aligning all legislation with consent-based frameworks is not some minor adjustment, but a full redistribution of authority.
Canadian law, however, is precise on this point: Aboriginal rights and title must be established through evidence or agreement. Until they are proven, claims to exclusive jurisdiction do not become law through repetition or endorsement. Canada has repeatedly rejected asserted sovereignty when it conflicts with constitutional order. Such rights either exist in law or they do not.
In a liberal democracy, the merit of an argument does not flow from race or bloodline. When ancestry becomes a qualification, debate shifts from evidence to identity. Indigenous legal status in Canadian law has nothing to do with anthropological origins. It is a legal concept, not a biological claim.
Aboriginal rights exist because Indigenous peoples predated the Canadian state, exercised self-governance, and were subordinated through colonial expansion. Canada’s Constitution recognizes and protects those rights under Section 35 based on historical continuity and power imbalance, not because any group is literally “native” to the land in an evolutionary sense. Every population, including those now described as Indigenous, is the product of migration, conflict, alliance, and change. The original settlers are long dead. What remains are Canadians.
British Columbia, however, is especially vulnerable to confusion about how reconciliation is meant to function in law because most of the province lacks treaties. That absence is often used to justify identity-based camps of Indigenous and settler populations, grounded in the assertion that much of British Columbia is “unceded territory.”
If settler status is meant to reflect the absence of treaties, what happens when someone relocates to an area covered by one of the modern treaties, like Tsawwassen? Do they shed that settler status, or does it persist regardless of context?
It makes little sense to condemn settlement while simultaneously recruiting doctors, engineers, tradespeople, and service workers to live and work in the province. Are they, too, morally classified as settlers upon arrival? The ideological framework offers no principled answers.
Rather than resolving treaty uncertainty through clear legal mechanisms, successive governments have increasingly relied on ideological language. New concepts such as “land back” and “consent-based decision-making” now appear in secretive agreements. These concepts, however, have no settled meaning in constitutional law; their force is political, not legal.
Ideas rooted in settler-colonial theory migrated from universities into journalism and public service, normalizing land acknowledgments, mandatory training, and official communications built around colonization and redress. Institutions once focused on administering the law increasingly describe their role as dismantling “colonial” structures. Official messaging now asserts that “decolonization is every Canadian’s responsibility.”
These dynamics are now visible within the BC Legislature itself. In 2025, NDP MLA Rohini Arora publicly urged British Columbians and members of the Legislature to self-identify as “settler, uninvited guest, or for white folks who self-describe, as colonizer.” The effect of such language is to recast civic debate in moral terms, positioning disagreement as identity-based transgression.
Government rhetoric now treats scrutiny of Indigenous-related policy not as a feature of democratic oversight, but as a moral failing. Questions about jurisdiction, authority, or legal effect are routinely characterized as “disrespectful” or “racist,” even as the policies under review extend into nearly every area of governance. As a result, constitutional questions are avoided, dissent is stigmatized, and institutional neutrality erodes.
Reversing this trajectory does not require rejecting reconciliation, but re-anchoring it in constitutional clarity. Public institutions must reassert legal precision in their communications and resist the substitution of moral identity for lawful authority. Reconciliation grounded in constitutional law can strengthen Canada. Reconciliation grounded in identity fragments it.
Warren Mirko is executive director of Public Land Use Society (PLUS) and has more than 15 years of experience in public relations and regulatory risk management across provincial and federal agencies.
Geoffrey Moyse, KC, has been engaged in the practice of Aboriginal law and public law for 31 years, advising several successive provincial governments as a member of the BC Ministry of Attorney General’s Legal Services Branch.
