An Indigenous group in northern B.C. has attempted to use Aboriginal title to claim the airspace above Crown land, expelling a local helicopter company and B.C. government forestry officials.
The conflict, which occurred over the summer, grew to involve the federal and provincial governments, before Ottawa declared in writing to four B.C. cabinet ministers in a Dec. 12 letter that Aboriginal title cannot be used to restrict any flights in Canadian airspace.
It’s the latest in a series of escalating, and confusing, interpretations of Aboriginal title in British Columbia.
The issue has captured intense public interest after the B.C. Supreme Court in August ruled the Cowichan Nation not only had Aboriginal title over 800 acres of land in the City of Richmond, but that Aboriginal title was of superior legal standing to private property rights.
Premier David Eby has promised to appeal that ruling and protect public property. But he has not made any similar promises to protect Crown land, or the airspace above it, from restricted public access due to title declarations.
The issue of airspace played out near Burns Lake in July, after the Wilps ‘Wii K’aax, a house in the Wolf Clan of the Gitxsan Nation, wrote a letter to local company Interior Helicopters saying it should no longer fly above the territory upon which it claimed Aboriginal title.
“Any activities, including aviation, conducted without the free, prior, and informed consent of Wilps ‘Wii K’aax will be documented and may be subject to follow-up under our stewardship and enforcement protocols,” hereditary chief Dorothy Smith Lattie wrote in the July 16 letter, CC’d to then-Indigenous Relations Minister Christine Boyle.
Wilps ‘Wii K’aax was conducting “monitoring and mapping” of its traditional territories on Crown land, in part using drones, and said any access to the land or air would require written consent.
The situation escalated when Ministry of Forests workers were flown in to do work in the area that month and were accosted by men who identified themselves as from the Wilps ‘Wii K’aax house, said West Luck, a third-generation pilot who flew the government officials to the site.
“They were very threatening,” said Luck, who dropped off and picked up the government officials.
“They told me not only was I not allowed on their territory, I wasn’t allowed to fly over their territory. I told them I can fly anywhere I want in Canada, other than military bases. It’s free air space in Canada.”
Luck pointed out the Wilps ‘Wii K’aax members had failed to get Transport Canada approval for their drone survey, which if done properly would have resulted in a federal broadcast warning of restricted airspace.
Neither the Wilps ‘Wii K’aax, nor the Gitxsan Lax’yip Land Management Office, returned a request for comment.
The Public Land Use Society, which has advocated for more transparency in Indigenous agreements involving Crown land, took the case to the federal government.
“The story was shared with PLUS by the pilot, and represents what we now hear about regularly,” said executive director Warren Mirko.
“As encapsulated in our letter to the Government of Canada, First Nations groups emboldened by the province and UNDRIP are demanding free, prior, and informed consent before granting access to claimed territory, otherwise Crown land. Enabling or encouraging this abdicates the authority of the provincial and federal governments and in this case is flat-out dangerous.”
Transport Canada responded in a Dec. 12 letter CC’d to B.C’s ministers of forests, transportation, Indigenous relations, and water, lands and resource stewardship.
“Canada has exclusive jurisdiction over aeronautics, which includes the ability to legislate and regulate the use of airspace,” the federal agency wrote.
“Even where Aboriginal title exists, within the meaning of Section 35(1) of the Constitution Act, 1982, laws of general application continue to apply.”
The agency reviewed Luck’s use of airspace above Burns Lake and determined he followed the law.
“Unless authorized by the federal government, no other person, group, organization, or level of government has the legal authority to approve, deny, or restrict flights in Canadian airspace, nor to impose ‘consent’ requirements on aircraft operators,” wrote Transport Canada.
It added that “the department will contact the Wilps ‘Wii K’aap of the Gitxsan Nation to clarify the responsibility of airspace and regulations relating to aviation safety.”
The B.C. government in a statement said it defers to Transport Canada on airspace, and does not consider it part of Aboriginal title claims. “B.C. negotiations with First Nations do not include aeronautics discussions,” read the statement.
Mirko said the airspace issue is yet another example of the risk to B.C. sovereignty that has come from policies such as B.C.’s 2019 Declaration on the Rights of Indigenous Peoples Act.
That DRIPA law can now be used to strike down other provincial laws and regulations, according to a B.C. Court of Appeal ruling earlier this month.
The premier has promised to change the law to oppose that court ruling as well.
“I certainly know that these court decisions have caused a huge amount of anxiety,” Eby told me recently.
Eby said both the Cowichan and DRIPA cases threaten to turn public opinion against broader reconciliation efforts. He’s promised to provide clarity and certainty to British Columbians, through the courts and legislature.
That may need to include some sort of reminder that airspace rights are not on the table either, when it comes to B.C.’s reconciliation efforts.
Rob Shaw has spent more than 17 years covering B.C. politics, now reporting for CHEK News and writing for BIV. He is the co-author of the national bestselling book A Matter of Confidence, host of the weekly podcast Political Capital, and a regular guest on CBC Radio.
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