Nearly 25 years later, B.C.'s First Nations treaty referendum echoes in land disputes | Daily Hive

Nearly 25 years later, B.C.'s First Nations treaty referendum echoes through today's land disputes

B.C. legislature in Victoria. (Fotogro/Shutterstock)

Nearly a quarter century after British Columbians overwhelmingly endorsed eight principles intended to guide provincial treaty negotiations, former Premier Gordon Campbell maintains the framework remains sound — even though it no longer legally binds the provincial government of the day.

Campbell, whose BC Liberals-led provincial government held the 2002 referendum, said Premier David Eby’s outgoing BC NDP administration had moved this province far away from its central principles — particularly public involvement, transparency, equal treatment, private property protection, and continued access to Crown land.

“Well, I think the referendum set us on the right path. I think what the NDP have done with the path is taken us off that path, and I think that that’s a shame,” Campbell told Daily Hive Urbanized in an interview before the provincial general election, which saw Lorne Doerkson’s Conservative Party of British Columbia topple Eby’s BC NDP with a decisive majority government.

Premier-elect Doerkson has promised to undo key elements of the BC NDP’s approach by repealing the Declaration on the Rights of Indigenous Peoples Act (DRIPA) and Section 8.1 of the Interpretation Act. The Conservatives have also pledged new laws protecting fee-simple ownership, requiring the disclosure of negotiations and agreements affecting public or private land before they become binding, and preserving public access to Crown land and provincial parks.

At the same time, the Conservatives say they will honour constitutionally protected Indigenous rights and the Crown’s legal duties to consult and accommodate, while pursuing economic partnerships and “clear and fair” treaty agreements.

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The 2002 referendum followed the BC Liberals’ landslide election victory and Campbell’s ascension to the premier’s seat the previous year, which saw the BC NDP decimated to just two seats in the legislature.

Conducted entirely by mail between April 2 and May 15, 2002, the referendum asked voters whether the provincial government should adopt eight principles governing its participation in treaty negotiations.

The principles covered private property, commercial leases and licences, public access to Crown land, parks and protected areas, province-wide environmental and resource-management standards, Indigenous self-government, coordination with municipal land-use planning, and the gradual removal of existing Indigenous tax exemptions.

Elections BC issued nearly 2.15 million voting packages and received 790,182 returned ballots by the deadline. After packages that failed to meet the referendum’s requirements were excluded, 763,480 ballots were considered — equal to a turnout of about 36 per cent of registered voters.

Every principle received at least 84.52 per cent support among valid votes.

Of special note, the strongest result was for the fourth question, which stated that provincial parks and protected areas should be maintained for the use and benefit of all British Columbians. It received 669,230 “Yes” votes, representing 94.5 per cent of valid votes cast on that question.

Ballot form with all eight questions for the 2002 B.C. government referendum on First Nations treaty negotiations. (Elections BC)

Results on all eight questions for the 2002 B.C. government referendum on First Nations treaty negotiations. (Elections BC)

However, the referendum was highly controversial and faced several legal challenges. Two court applications sought to stop the ballots from being mailed or counted, while a related challenge alleged that the referendum regulation was legally invalid. All were dismissed.

The vote shaped the Tsawwassen treaty

Now, almost 25 years later, Campbell said he continues to support all eight principles.

“I think the core is this. The whole purpose of the referendum was to include all British Columbians,” Campbell told Daily Hive Urbanized.

“I still believe in the idea of equality, and that was an effort to open the doors to building a future for all British Columbians, and to do it in a way that reflected eight specific principles.”

However, the referendum’s legally binding effect was limited to only Campbell’s administration.

That limitation is written into the Referendum Act. Generally, under provincial law, a referendum binds only the government that initiated it, not subsequent administrations. Future provincial governments are therefore legally free to adopt different policies and strategies, even if they conflict with principles strongly endorsed by the public in an earlier referendum.

In this case, subsequent provincial governments have been able to pursue different treaty negotiation approaches.

“They’re not unlawful or unconstitutional. This is a political issue,” Geoffrey Moyse, a lawyer specializing in Indigenous and constitutional law, told Daily Hive Urbanized in an interview.

Although it did not bind future administrations, the referendum had a very tangible impact on Campbell’s own government, with its principles helping shape the landmark Tsawwassen First Nation treaty later that decade.

The 2002 referendum did not initiate the Tsawwassen treaty negotiations, which had begun in 1993, but it established the negotiating mandate Campbell’s administration subsequently applied at the table.

When the provincial and federal governments and the Tsawwassen First Nation signed an agreement-in-principle in 2004, Campbell’s administration explicitly described it as consistent with the referendum’s publicly endorsed principles.

That agreement became the foundation for the Tsawwassen Final Agreement — the first modern treaty completed through the B.C. treaty process.

Tsawwassen First Nation members ratified the treaty in July 2007, the B.C. legislature approved it in November 2007, the federal government ratified it in June 2008, and it took effect in April 2009 — providing the First Nation with self-government, about 1,789 acres (724 hectares) of land in the southeast corner of Delta, and clearly defined rights and responsibilities. Most notably, the First Nation subsequently used a portion of that land to build the Tsawwassen Mills shopping mall under a long-term lease with a private developer and mall operator.

Aerial of Tsawwassen Mills shopping mall. (Associated Engineering & Associated Environmental)

Provincial parks on the negotiating table

The most visible recent example raised by Moyse is the ongoing Te’mexw Treaty Association negotiations on Vancouver Island, noting that provincial parks have been placed on the negotiating table.

The Te’mexw association represents five First Nations — Malahat, Beecher Bay, Songhees, Snaw-naw-as, and T’Sou-ke — which have negotiated with the federal and provincial governments since 1995. An agreement-in-principle was signed in 2015, and the parties are now working toward five separate final treaties.

The proposed treaty lands include Discovery Island Marine Provincial Park for the Songhees First Nation, and Sooke Mountain Provincial Park for the T’Sou-ke First Nation.

The outgoing BC NDP administration’s position was that public access and recreational opportunities would continue and conservation values would be maintained. It also held public open houses in four Vancouver Island communities in June 2026 and noted that further engagement will occur before the treaties are concluded. Each treaty must be approved by the affected First Nation and the provincial and federal governments before taking effect.

Moyse nevertheless argued that offering provincial parks as treaty lands conflicts with the very strong political direction voters provided in 2002.

He also cautioned that any access guarantee would depend on the exact language of the final treaties, which has not yet been released. He said treaty implementation legislation could amend or override portions of the Park Act.

Who controls development on treaty lands?

Moyse said his concern extends beyond Discovery Island Marine and Sooke Mountain provincial parks to Hatley Park National Historic Site — the federally-owned property in Colwood in Greater Victoria that is home to Royal Roads University, Hatley Castle, and its surrounding public gardens and grounds. The Department of National Defence has determined that it no longer requires the property for operational purposes, placing at least a portion of it into discussions for potential inclusion as Songhees First Nation treaty land.

“Again, the federal government has apparently decided that those lands are surplus to the federal government’s needs and thus surplus to the public’s needs, and they’ve been put on the table for transfer to the Songhees,” Moyse told Daily Hive Urbanized.

Royal Roads University, which leases the federal land it sits on, says it supports the transfer of the lands through the treaty process and has agreements with the Songhees First Nation and Esquimalt First Nation, and intends to ensure that the post-secondary institution can continue operating. Those agreements also express a shared commitment to protecting the property’s heritage, cultural, historic, and environmental values, although the university acknowledges that its campus footprint could change.

Hatley Castle, the site of Royal Roads University, at Hatley Park National Historic Site. (Mo Wu/Shutterstock)

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Public park and green space at Hatley Park National Historic Site. (Shutterstock/Edwin Christopher)

Moyse argued that continued Royal Roads University operations would not eliminate the consequences of transferring ownership. He objected to the possibility that the university could eventually have to acquire the portion of the property it requires for its campus after the land becomes treaty land. A 2017 provincial briefing noted that the university and the Songhees First Nation intended to explore fee-simple ownership of the lands required by the university, while emphasizing that all parties expected the institution to remain at its current location.

“You start to hear ridiculous things like the Songhees saying, ‘Well, you know, the university could always buy those lands back from us once we’ve been given them in treaty negotiations. They can pay us millions of dollars to buy them back,'” said Moyse.

“This is all set against a background that people need to understand: These lands are not lands that are subject to any existing or remaining Aboriginal title. These are lands which were surrendered in the 1850s… Why are we giving lands to people that they’ve already surrendered in the past?”

This proposed transfer is also being challenged by the Esquimalt First Nation, which filed a lawsuit in March 2026 seeking Aboriginal title over Hatley Park and an injunction preventing any portion from becoming Songhees treaty land. The federal government has said the case remains at an early stage.

The provincial government previously indicated that treaty lands would no longer be governed by municipal zoning. Instead, each treaty nation would have authority to manage, zone, and plan the use of its lands.

Moyse suggested that, in urban areas with little available Crown land, governments could instead provide First Nations with funding to acquire private commercial property from willing sellers. Those properties could then remain subject to municipal zoning, rather than transferring heavily used public parks, historic sites, and other public lands.

Moyse also raised a less visible but major consequence of the proposed transfers: the loss of a municipal government’s zoning authority over land that becomes treaty land. He said that “no matter what the treaty says, these lands, once they are transferred, are not subject to local zoning.”

One example of the land use authority created by a modern treaty can be seen at Tsawwassen First Nation, where the 2009 treaty controversially helped make the Tsawwassen Mills shopping mall possible on former provincial Crown land that had previously been agricultural. The treaty transferred the land to the First Nation, excluded specified lands from the provincially-protected Agricultural Land Reserve, and placed land use planning under the First Nation’s jurisdiction. Under the proposed Te’mexw treaties, each First Nation would similarly be responsible for managing, zoning, and developing its treaty lands. Federal and provincial laws would continue to apply, with the final treaties setting out which laws prevail.

In addition to the federally-owned portion of Hatley Park, one of the most prominent properties in the proposed Songhees land package is Enterprise Wharf at 1112 Wharf St. — a 2.9-acre provincial Crown parcel on the Victoria Inner Harbour waterfront in Downtown Victoria. Named after the historic wharf once located there, the property is now largely used as a surface vehicle parking lot.

Another property in question is the 2.3-acre surface vehicle parking lot — known as the “Q Lot” — at 430 Menzies St., situated immediately west of the B.C. legislature.

“The City of Victoria will have no say on what the Songhees decide to build on that waterfront wharf lot. They will have no say on what the Songhees decide to build right beside the legislature. The City of Colwood will have no say over what happens to the Hatley Castle grounds,” warned Moyse.

1112 Wharf Street Victoria Enterprise Wharf

Enterprise Wharf at 1112 Wharf St., Victoria. (Google Maps)

Q Lot at 430 Menzies St., Victoria. (Google Maps)

“I want to live in a country where people are treated equally, with equal opportunities”

Campbell similarly accused the BC NDP of conducting too much of its reconciliation and land negotiation work outside public view.

“I don’t think that you’re going to succeed in an open public democratic society when a government thrives on secrecy. They try to put in place documentation and agreements that effectively exclude the vast majority of the population. That is not the way to the future,” Campbell told Daily Hive Urbanized in the interview.

“The way to the future is to embrace the principle of transparency and equality and say to us all, ‘We’re all in this together and we’re all here to stay. But we’re going to do it openly and honestly.'”

Campbell said he believes the outgoing BC NDP administration’s lack of transparency was deliberate, alleging that it knew its approach would not receive broad public support.

“I think the NDP knows that the general public would not accept it,” said Campbell.

He connected that criticism to the BC Liberals’ opposition to the Nisga’a Final Agreement — relating to lands north of Terrace — while his party was in opposition. The province’s first modern treaty was negotiated and signed by Glen Clark’s BC NDP-led provincial government in 1998 and came into effect in May 2000 — about a year before Campbell first became premier.

Campbell unsuccessfully challenged core self-government provisions of the Nisga’a treaty in court, seeking to have those portions declared constitutionally invalid. The Supreme Court of B.C. rejected the challenge in 2000, and the BC Liberals abandoned their appeal after forming provincial government government shortly after.

Campbell maintained that his party’s initial objection to the Nisg’a treaty was not to reconciliation itself, but to what it saw as the exclusion of the wider public from decisions involving significant public interests. He argued that British Columbians were presented with a completed agreement and then accused of opposing reconciliation if they questioned it. The 2002 referendum had its political roots partly in the controversy surrounding the Nisga’a treaty’s process.

Campbell further painted a picture of the current controversies being a broader debate about whether everyone should have equal access to public decision-making.

“I want to live in a country where people are treated equally, with equal opportunities, and I think that’s a critical component of building a strong and vital future for Canada and for British Columbia,” he said, accusing Eby’s BC NDP of moving away from that principle and using secrecy to avoid explaining the consequences of its policies.

He extended the same argument to resource development, rejecting the idea that any Indigenous community should have unilateral authority to stop a project.

Campbell said that, during his time as premier, his administration’s position was that “there is not going to be a veto for Aboriginal and Indigenous communities. That is not the way to build the kind of long-term reconciliation people claim they’re after.” That political position does not eliminate the Crown’s constitutional obligations to consult and, where required, accommodate Indigenous people.

Campbell argued that those obligations should be carried out through transparent processes that also involve the wider public.

“The way to do it is to have open processes that are clear, and not do these kind of hidden agenda items that the public has no say in or control of,” he said.

Campbell said his concern was not limited to natural resource projects. He also alleged that transferring public parks could leave continued public access dependent on decisions made outside the provincial system.

“It’s not just resources. You know, we have public parks all over the province, and the NDP has decided that, ‘Oh, well, the public won’t have access to some of those parks sometime.’ When? Whenever they feel like,” he told Daily Hive Urbanized.

“That’s not the right way to handle this, and it turns people away from an open democratic community where everyone is treated as an equal, and everyone is invited to have their say, but no group, based on religious beliefs or race or anything else, is in a position to veto what is important to the future of the province of British Columbia,” he reiterated.

Campbell did not identify a particular provincial park, but a very prominent and controversial example of recurring and highly unpredictable temporary access restrictions is Joffre Lakes Provincial Park. In recent years, this highly popular provincial park near Pemberton has been repeatedly closed to the general public for extensive periods of the peak outdoor recreation season, as a measure to provide the Lilwat First Nation and N’Quatqua First Nation with their own time in the space.

Although the eight-day closure in June 2026 and the 23-day closure beginning after Labour Day in September 2026 were both announced on May 7, 2026, earlier restrictions requested by the First Nations often came with very little warning, with Joffre Lakes Provincial Park closed for weeks — sometimes overlapping with the very busy late August to early September period — with just one day’s public notice of the closure.

It should be emphasized that this situation is completely legally distinct from transferring parkland through a treaty. Joffre Lakes Provincial Park remains provincial parkland, and the Park Act enables the number of visitors to be limited or temporarily closed for public use.

Doerkson’s incoming Conservative-led provincial government has promised to “restore equal access to Crown land and provincial parks” by legally guaranteeing public access, subject only to “legitimate conservation and safety requirements.”

Joffre Lakes Provincial Park. (Pierre Leclerc/Shutterstock)

The question of private property, DRIPA, and B.C.’s path forward

Private property guarantees were another central concern raised by Campbell. The issue has gained immense prominence following the Supreme Court of B.C.’s August 2025 Cowichan Tribes decision, with Justice Barbara Young granting them Aboriginal Title over a large area of public and private lands in southeast Richmond. It became a major issue during the October 2026 provincial election campaign.

The referendum’s first principle stated that private property should not be expropriated for treaty settlements. However, the 2002 vote did not address court-declared Aboriginal title over previously granted fee-simple land.

The Cowichan Tribes court case is separate from treaty negotiations. The court recognized Aboriginal title over land in Richmond, including areas containing privately-owned property with major industrial businesses by multinational companies, but the Cowichan Tribes did not ask the court to invalidate privately held fee-simple titles.

The BC NDP administration and Cowichan Tribes have also stated that neither is seeking to invalidate those private titles through negotiations or their respective appeals.

However, for more than a year, critics have accused lawyers representing the BC NDP-led provincial government of pulling their punches in the Cowichan Tribes case.

Campbell nevertheless argued that Canadian constitutional changes are necessary to provide stronger protection for private property ownership, along with clearer public consultation and disclosure requirements by governments.

He was equally direct when asked about DRIPA, which the BC NDP administration introduced and the legislature unanimously passed in 2019, as the provincial government’s framework for aligning provincial laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

“DRIPA should be repealed. You should never pass legislation where you don’t know what the impacts are going to be,” Campbell told Daily Hive Urbanized.

The incoming majority Conservative government has pledged to turn that position into government policy. Their platform explicitly promises DRIPA’s repeal and a return to what it calls the existing Section 35 constitutional framework.

Campbell also warned that unresolved rules around land, permitting, resource development, and consultation could greatly discourage private investment in B.C.

“I think one of the things that everyone has missed in this discussion is, uncertainty is one of the worst things we can have in the economy. If people don’t know what the rules are, it’s really hard to ask them to invest substantial sums in an economy,” he said.

Both Campbell and Moyse said the public should be consulted if the provincial government of the day intends to replace the principles adopted in 2002, although Moyse more directly endorsed holding another referendum while Campbell described it as one possible approach.

Campbell said the original framework remains satisfactory, but a government that disagrees with it should openly explain what it wants to change and seek public input. Moyse went further, recommending another province-wide exercise to establish contemporary public expectations for treaty negotiations.

“I would certainly recommend that there be another similar endeavour,” said Moyse, while acknowledging that a new referendum would likely encounter strong opposition from First Nations organizations, as the original did.

Moyse nevertheless said modern treaties can successfully advance reconciliation when suitable lands are identified, a sound agreement is negotiated, and certainty and finality are provided for all parties. He further described the Nisga’a treaty as “a huge success.” Moyse was one of the provincial government’s lawyers in the 1990s working on the Nisga’a treaty.

Moyse’s preferred outcome is “a form of reconciliation that actually works for everybody.”

The provincial election outcome means many of the policy changes suggested by Campbell could now be pursued without putting the question back to voters.

Although the 2002 referendum does not bind the incoming government, several of its underlying principles could soon re-emerge as provincial policy under the Conservatives — nearly a quarter century after British Columbians first endorsed them.

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