UBC’s recognition of land rights is not political – Chiefs

Six First Nations chiefs have come out swinging against a lawsuit brought by four University of British Columbia (UBC) professors and a former UBC graduate student who claim that the university’s land acknowledgement that UBC campuses in Vancouver and in the Okanagan (southern British Columbia) are on “unceded” Indigenous territory violates their academic freedom.

The petition for the plaintiffs, filed by the Canadian Constitution Foundation (CCF), with the Supreme Court of British Columbia (despite its name, a lower-level court of original jurisdiction in such cases), argues that the university land acknowledgements violate British Columbia’s University Act, which states: “A university must be non-sectarian and non-political in principle.”

According to Josh Dehaas, the CCF’s counsel: “When administrative bodies or people in their administrative capacity on behalf of the university make claims about unceded territory or other versions of land acknowledgements, it often does impinge on academic freedom because it’s an official statement from the administration about what is very clearly a political debate in this country.

“Unceded land acknowledgements, for example, imply that Canada is on stolen land, and that is something that is very much for political debate in this country.”

Dehaas told University World News: “There are many professors who feel that this is not true and, perhaps, want to challenge that.”

He then noted that such a “political statement” by an administrator impacts academic freedom “rather than leaving it up to professors themselves to choose whether they want to make those statements”.

The petition also argues that the requirement that new professors “express agreement with, fidelity to or loyalty to diversity, inclusion and equity doctrines” (or ‘EDI’, as Canadian law and practice refer to them), as well as “declarative statements condemning violence in Israel or Palestine”, also violates professors’ and students’ academic freedom.

According to the First Nations leaders, the CCF petition is mistaken about the legal status of UBC’s land acknowledgement statements, which occur both in formal university settings and on course outlines.

“The recognition of unceded Syilx Okanagan [where UBC’s Okanagan campus is] is not a political manoeuvre; it is an acknowledgement of historical truths and legal realities. Attempts to silence these acknowledgements are attempts to erase Syilx Okanagan presence and rights,” said the chair of the Chiefs Executive Council, Chief Clarence Louie, in a press release by the Syilx Okanagan National Alliance (SONA).

“UBC’s approach is also in line with the commitments made by both the Government of Canada and the Province of British Columbia to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),” stated the SONA press release.

“These commitments include recognising the rights of First Nations to their lands, territories, and resources, and affirming the necessity of free, prior, and informed consent in decisions that affect them. Recognising unceded territory is a foundational expression of these principles,” it noted.

Legal recognition of traditional territories and governance

In an essay in the Globe and Mail published on 16 April, UBC law professor Scott Franks, a citizen of the Manitoba Métis Federation and an expert in Aboriginal and Indigenous law, showed that in 1984, in a case that dealt with the Musqueam First Nation, upon whose land the main campus of UBC rests, the SCC “rejected the idea that Indigenous peoples’ rights were discretionary and political when he found that the Crown owed legal obligations to the Musqueam Nation when it assumed control over the Nation’s lands”.

In 2004, in another case involving a BC First Nation, Franks noted, the SCC “rejected the so-called ‘doctrine of conquest’ [which dated back to the 1400s] that holds that Indigenous peoples do not retain any rights after conquest when she [Beverley McLachlin, the SCC’s chief justice] reasoned that ‘Aboriginal peoples were here when Europeans came and were never conquered’”.

A decade later, Franks added, the SCC “further rejected the doctrine of terra nullius, which held that Indigenous people were too low on the level of civilisation – or not human at all – for their lands to be governed by them. In that case, the court affirmed that the Tsilhqot’in Nation [in West-Central British Columbia] had never surrendered nor ceded its lands to the crown.”

That UBC’s campus in Vancouver may not look like traditional First Nations’ territory has no bearing on its legal status.

Rather, according to Franks, it comes under the concept of “de facto control of Crown lands”, which “does not magically change the status of lands in the province to ceded lands”. These “lands remain unceded, unsurrendered, and constitutionally protected by the Canadian constitutional framework.”

Accordingly, Franks concluded: “The University of British Columbia’s land acknowledgement is not a ‘political position’ but rather an appropriate and necessary legal recognition of the traditional territories and governance of the Musqueam Nation and an adherence to the rule of law in Canada.”

Defining ‘non-political’

A large part of the CCF’s petition concerns defining academic freedom and what constitutes ‘non-political’ speech in order to determine what ‘political’ speech, which is forbidden, is.

“The petitioners say that the term ‘political’ in Section 66 must be interpreted consistently with Section 4, such that the university and its administrative components are prohibited from undertaking political activities that are inconsistent with the academic freedom necessary for instruction, research and the pursuit of knowledge,” says the court filing.

The four professors and one graduate student told the court that the “official declarations that UBC lands are unceded inhibit free inquiry, discussion, lecture and debate of the scope of Indigenous political rights in Canada”.

Because of the land acknowledgement, the court has been told that anyone who argues that the Musqueam or Okanagan people effectively ceded their lands or that their rights to title have “been fully or partially extinguished can reasonably conclude that their political views or legal opinions are not welcome at UBC”.

David Robinson, executive director of the Canadian Association of University Teachers, a staunch proponent of academic freedom, does not agree with the CCF’s arguments here.

“It’s an interesting case that will test a peculiar clause in the BC University Act that says that institutions have to be non-political,” said Robinson. “We’ve always interpreted that to mean they are non-partisan. That is, that they don’t support one political party or another.

“Institutions take broadly political positions on all kinds of things. They have positions on reducing their carbon footprint, which some would see as a political position,” he noted.

Conservative causes

According to Dehaas, the CCF is committed to “doing public education about constitutional rights and freedoms and also doing litigation”.

Its most famous case was its challenge to the invocation of the Emergencies Act by the government of then prime minister Justin Trudeau in order to clear the streets of Ottawa of truckers who had been protesting COVID-era vaccine mandates and other restrictions in January and February 2022. In January 2024, the Federal Court ruled against the government, a decision that is now under appeal to the Federal Court of Appeal.

However, a number of the CCF’s board members are identified with conservative causes. The organisation’s chair, retired lawyer Andy Crooks, is a former chair of the conservative Canadian Taxpayers Federation and is presently a member of the Canada Strong and Free Network, which, according to its own website, is a “conservative movement” supportive of limited government, free enterprise and individual responsibility.

Another member of the board is the Honourable Tony Clement, who, between 2006 and 2015, served in the cabinet of conservative Prime Minister Stephen Harper and, before that, in the conservative cabinets of two premiers of Ontario.

As Robison noted, the CCF is “not on the left side of the political spectrum”.

Broader attack on academic freedom

Accordingly, Robinson told University World News: “It’s no surprise that what the plaintiffs are targeting here are indigenous land acknowledgements; I think it is debatable whether you would consider them political statements.”

Robinson added that he finds the challenge to equity, diversity and inclusion initiatives redolent of similar attacks on DEI “south of the border”, meaning in the United States.

What is different in the Canadian context, Robinson explained, is that unlike in the United States, where DEI offices and programmes are (mainly) university policies (and, thus, have been attacked by the Trump administration), in Canada EDI initiatives are based in human rights law and provincial human rights acts.

“Accordingly, there’s a bit more institutional resilience against the assault on equity, diversity and inclusion initiatives here in Canada,” he said.

*This article has been updated on 2 May.