https://substack.com/@walterhpersaud" rel="noopener noreferrer" target="_blank" style="background-color: rgb(22, 23, 24); color: unset;">Dr. Walter H Persaud

Apr 06, 2026

There is a sentence near the end of Les Leyne’s recent piece in the Times Colonist that deserves more attention than it received. Writing about the Eby government’s collapse into procedural crisis over DRIPA and the mineral claims ruling, Leyne observes: “No one is using those descriptions today, and it’s not clear if anyone has ideas on how to get back on that path.”

The path he is referring to is the one that was supposed to deliver, in the NDP’s own words, “economic and legal certainty and predictability.” Eight years in, the certainty has dissolved. The predictability has inverted. The government that came to power committed to reconciliation as Job One now finds itself trying to suspend the very legislation that was supposed to deliver it.

Leyne frames this as a political jam. A government cornered by court decisions it did not anticipate, searching for the least invasive procedural escape. His diagnosis is tactical. His implicit question is: how does Eby get out?

That is the wrong question. And the fact that it is the question being asked, in the legislature, in the business press, in the legal community, is itself the most precise diagnosis of the problem available.

Eby is not cornered by the courts. He is cornered by history. The courts have not created uncertainty. They have named a pre-existing condition. The uncertainty was always there. It was simply invisible to the people who benefited from not seeing it.

A System Built on a Relation of Power That No Longer Exists

To understand what is actually happening in British Columbia, you have to understand what the mineral claims regime, and the broader architecture of Crown resource rights, was built on. It was not built on a legal theory, though it acquired legal expression. It was built on a relation of power.

That relation of power rested on a specific and brutal historical fact: that Indigenous peoples had been militarily defeated, politically subordinated, culturally suppressed, and administratively managed into a condition of effective powerlessness. The Crown and the colonial governments that succeeded it did not merely claim authority over the land. They enforced that claim through the instruments available to a conquering power: military force when necessary, the residential school system when possible, the Indian Act as permanent administrative architecture. The assumption embedded in every mineral claim, every Crown land grant, every resource tenure issued by the BC government was not simply a legal assumption. It was a power assumption. These peoples have been defeated. That is a done deal. There is no coming back.

That assumption is no longer operative. This is the fact that the Eby government, the mining industry, the Richmond mayor, and the Times Colonist’s political columnist are struggling, with varying degrees of awareness, to process.

The return was not sudden. It has been decades in the making, moving through the courts, through political organizing, through the slow reconstruction of governance capacity, through the assertion of title in forums that the colonial system itself created and that it cannot, without abandoning its own legitimacy, simply dismiss. The Calder decision in 1973. Sparrow in 1990. Delgamuukw in 1997. Haida Nation in 2004. Tsilhqot’in in 2014. Each decision a further displacement of the power assumption on which the resource economy was built. Each one met, in its moment, with the same mixture of alarm and procedural resistance that we are watching play out again today.

And then there was Oka.

In the summer of 1990, the Mohawk people of Kanesatake erected a barricade on land the municipality of Oka, Quebec intended to expand into a golf course. The land contained a Mohawk cemetery. The standoff lasted 78 days. A Sûreté du Québec officer, Corporal Marcel Lemay, was killed in the initial assault on the barricade. The Canadian Armed Forces were deployed. The world watched.

I was at the CBC during that crisis. I watched it closely. I supported the Indigenous peoples in that standoff, not as a matter of sentiment but as a matter of recognition: what was happening at Oka was not a land dispute in the ordinary sense. It was a demonstration, at the cost of blood, that the power relation the colonial system depended on, the relation of defeated people, of a done deal, of no coming back, was no longer secure. The Mohawk people did not have artillery. They had something more durable: the legitimacy of original claim and the willingness to defend it.

Oka did not resolve the underlying question. No single confrontation could. But it announced, to anyone paying attention, that the assumption of permanent subordination on which the resource economy rested was a political fiction being maintained by force of habit rather than force of fact. The habit was breaking down.

What the courts are doing now, what the BC Court of Appeal did in finding that the mineral claims regime violates DRIPA, what the BC Supreme Court did in the Cowichan title ruling, is not judicial activism. It is the legal system catching up, slowly and imperfectly, to a political reality that was already visible at Oka thirty-five years ago. The power has shifted. The question is no longer whether it has shifted but what Canada intends to do about the fact that it has.

The Ownership and Stewardship Argument

The businesses currently operating on unsecured tenure in British Columbia ought to be unsecured. This is not a radical statement. It is a legal and historical description. They received their tenures from governments, Crown, provincial, federal, that were operating on the assumption of authority they did not legitimately possess. Not because the legal system said so at the time, though the legal system is increasingly saying so now. But because the foundational claim, that the Crown acquired sovereignty over Indigenous peoples and their territories through discovery, through conquest, or through the mere assertion of authority, was always a claim made by one party in its own interest, never genuinely consented to by the other.

First Nations peoples are the original owners of this land. Not in a metaphorical sense. Not in the sense of a cultural relationship that deserves respect. In the juridical sense that is now being affirmed, incrementally and irreversibly, by the courts. Ownership that was never legitimately extinguished does not disappear because it was ignored for a century and a half. It waits. It accumulates. It returns, in courtrooms, in negotiations, in standoffs, in the slow grinding pressure that Leyne’s glacier metaphor, intended to convey the government’s predicament, actually describes more accurately than he intended.

But ownership is only part of the argument, and in some ways the less important part for the strategic question Canada faces.

The more important argument is stewardship.

Indigenous peoples did not merely live on this land for thousands of years before European contact. They managed it. They developed, over millennia, sophisticated and internally coherent systems for understanding ecological relationships, for regulating resource use, for making decisions across generations, for balancing present need against future capacity. These are not romantic traditions preserved in amber. They are living knowledge systems, continuously adapted and applied, that in many cases demonstrate a superior capacity for sustainable land management than the extractive frameworks that replaced them.

The evidence for this is not primarily philosophical. It is empirical. Watersheds managed under Indigenous stewardship frameworks show measurably better ecological health. Fisheries managed according to Indigenous protocols demonstrate better long-term yields. Forests managed according to Indigenous burning and harvesting practices show greater biodiversity and resilience. The ecological crisis that now threatens the resource economy itself, the depleted salmon runs, the old growth forests on the edge of irreversible loss, the watersheds under pressure, is not a natural disaster. It is the predictable outcome of a management philosophy that treated the land as a resource to be extracted rather than a relationship to be maintained.

The question before British Columbia and before Canada is not whether to accommodate Indigenous rights within the existing resource management framework. It is whether the existing resource management framework, which is producing ecological and legal crisis simultaneously, should continue to be the framework at all.

The answer, from the perspective of strategic intelligence rather than ideological commitment, is no.

The Power Shift and the Political Choice

David Eby is trying to turn back a tide that cannot be turned back. So, in his way, is Malcolm Brodie, the Richmond mayor who asked the Cowichan Nation this week to renounce its claims on private land in a legally binding way. The request is not merely legally futile. It is a precise illustration of the failure of political imagination that characterizes this moment: the attempt to restore, through procedural demand, a relation of power that no longer exists.

The power has shifted. Not completely, not irreversibly in every dimension, not without ongoing contest. But sufficiently and structurally that the option of returning to the pre-DRIPA, pre-Tsilhqot’in, pre-Oka assumption of Indigenous subordination is not available. The courts will not allow it. The international legal framework, which Canada has endorsed through UNDRIP, will not allow it. And the political capacity of Indigenous peoples, built over decades of legal struggle, governance development, and the assertion of rights in forums that cannot be dismissed without Canada abandoning its own rule-of-law commitments, will not allow it.

What is available is a choice between two paths.

The first path is the one Eby is currently on: managing the collision between colonial assumptions and Indigenous reality as an ongoing crisis, buying time with procedural maneuvers, appealing court decisions, suspending legislation, issuing loan guarantees to calm real estate markets. This path does not resolve the underlying tension. It defers it, at increasing cost, until the next court decision forces another crisis, and then another, grinding away at the government like Leyne’s glacier, producing the precise opposite of the certainty and predictability that was promised.

The second path requires a different kind of political courage than any BC or federal government has yet demonstrated. It requires the recognition that the resource economy of this province and this country needs to be rebuilt on honest foundations - foundations that begin with the acknowledgment of Indigenous title and the incorporation of Indigenous stewardship frameworks into the governance of land and resources. Not as a consultation requirement bolted onto existing processes. Not as a box to be checked before proceeding with decisions already made. But as the primary framework from which resource governance proceeds, with Indigenous ownership and stewardship at the center rather than at the margin.

This is not only the just path. It is the strategically intelligent one. A resource economy built on legitimate title, on stewardship frameworks adequate to the ecological challenges the industry faces, on genuine partnership with the peoples who have the deepest knowledge of the land and the longest investment in its future, that economy is more durable, more defensible internationally, more capable of navigating the environmental and legal pressures that are only going to intensify, than the economy currently being defended by procedural maneuver in the BC Court of Appeal.

The Deeper Strategic Argument: Cognitive Sovereignty and the Discursive BYPASS

There is a dimension to this argument that exceeds the immediate crisis, and that connects the question of Indigenous title in British Columbia to the question of Canada’s strategic position in a rapidly reordering world.

Canada is a middle power in a post-hegemonic transition. The old order, American-led, Western-ontology-based, structured around the assumptions of liberal internationalism, is fracturing. The new order has not yet taken shape. In this interval, the middle powers that will matter are those that can offer the world not merely a softer or more multilateral variant of the existing order but a genuinely distinct account of what order could mean — a different story about sovereignty, about land, about the relationship between human communities and the natural systems that sustain them, about what economies are for.

Canada has, within its own borders, access to exactly the kind of epistemic resource that a genuinely distinct strategic identity requires. The Indigenous knowledge traditions of this country, developed over thousands of years, tested against the specific ecological and relational conditions of this land, surviving the most sustained assault on a knowledge system in modern history, constitute an alternative ontology: a different account of what exists, what matters, what the relationship between present generations and future ones entails, what land is and what the human relationship to it should be.

To build Canadian foreign policy, Canadian economic frameworks, Canadian governance architecture on these foundations, not as a cultural gesture but as a strategic foundation, would give Canada something no other Western middle power possesses: a discursive position that is genuinely outside the Western liberal tradition, native to this land, and adequate to the challenges of the century.

But this requires Indigenous political leadership at the national level. Not Indigenous consultation. Not Indigenous participation within existing frameworks. Indigenous leaders remaking the frameworks themselves, bringing to the governance of this country the ontological resources their traditions carry, rebuilding economic theory and land governance and foreign policy identity from a foundation that is rooted in this land rather than imported from the European state system.

This is not a distant aspiration. The political capacity is there. The knowledge is there. The legal foundations are being built, decision by decision, in the courts. What is required is the political will, in Ottawa and in Victoria, to recognize that the power shift is real, that it cannot be reversed, and that the choice is between managing it as permanent crisis or embracing it as the source of a genuinely new and genuinely Canadian strategic identity.

What Needs to Happen

The businesses operating on unsecured tenure in British Columbia should come to the table, not because the courts are forcing them to, though the courts are forcing them to, but because a resource economy built on legitimate partnership with Indigenous title-holders is more stable, more productive, and more defensible than one built on the fiction of Crown authority that the legal system is systematically dismantling.

The Eby government should stop trying to manage the collision and start trying to resolve it, which means not a pause on DRIPA, not a suspension, not a rewrite, but a genuine renegotiation of the terms on which the resource economy operates, with Indigenous title and stewardship at the center.

The federal government should recognize that UNDRIP is not a diplomatic commitment made in an international forum but a description of a legal and political reality that is being confirmed, incrementally and irreversibly, in Canadian courts.

And Canadians, not as a matter of guilt, but as a matter of strategic intelligence, should begin to understand that the Indigenous peoples of this country are not a problem to be managed. They are the holders of knowledge, of title, of political capacity, and of an ontological tradition that this country will need, urgently and profoundly, as it navigates the century ahead.

The ground has shifted. The question is whether Canada will build on it honestly, or continue to pour concrete on a foundation that the courts, the history, and the land itself are steadily reclaiming.

walterhpersaud.substack.com

walterhpersaud@emga.ca

The Ground Beneath the Crisis: Indigenous Title, Shifting Power, and Canada’s Strategic Choice