The Cost of Irresponsible Legal Commentary
Lawyers must provide accurate and reliable information about Aboriginal law to the public
Reconciliation is a lens through which governments, courts, and communities may frame their work with Indigenous Peoples. Primarily based in the Crown’s existing legal obligations, it also seeks to establish a new relationship with Indigenous Peoples built on understanding, respect, and collaboration. In recent years, Reconciliation has increasingly informed the development of legislation and policy. Today, however, Reconciliation faces political and public resistance rooted in persistent misunderstanding.
Now more than ever, the public needs accurate and reliable information about Aboriginal law to foster understanding and advance a just and sustainable society.
Lawyers play a pivotal role in this process, yet in some instances, intentionally or not, they fall short of their obligations.
The general legal knowledge trap
As Aboriginal law practitioners, it’s not uncommon to have our expertise diminished by other lawyers, perhaps assuming that Aboriginal law is not “real law,” complex, or necessary, and is subject to being taken away. This couldn’t be further from the truth.
Aboriginal law is multi-faceted, fundamental, and far too complex to “dabble in.” It addresses some of the most necessary and urgent legal questions in this country, as demonstrated by recent decisions such as Cowichan1 and Gitxaala.2
Lawyers are often tasked with answering complex questions of law, which can oftentimes contain an aspect of Aboriginal law. It can be tempting to treat those aspects as incidental to one’s practice area—after all, how hard could it be?! Things may go well. Or not. Are you qualified to tell the difference?
Even lawyers who regularly encounter aspects of Aboriginal law may not develop the understanding necessary to provide informed and reliable perspectives.
Aboriginal law is shaped not only by distinct constitutional doctrines and jurisprudence, but also Indigenous legal orders, histories, and lived realities. As a result, engaging meaningfully with Aboriginal law requires more than knowledge of the law. It involves grappling with the continuing impacts of colonialism and situating legal issues within a broader historic, cultural, socio-economic, and political landscape.
When lawyers espouse positions about Reconciliation or Aboriginal law without the necessary understanding, it may not always amount to misconduct, but it is certainly not without risk. Lawyers must be cautious to assess their own competencies and only operate within them.
Professional obligations
The Code of Professional Conduct speaks clearly about competence: Lawyers must recognize the limits of their expertise, avoid providing services in areas where they lack sufficient knowledge, and pursue ongoing education to remain effective in their practice.3 For Aboriginal law, this includes cultural competency, which involves an accurate understanding of Canadian history, Indigenous cultural awareness, and an understanding of ongoing harms needing legal redress.
An honest assessment of one’s own competence may include asking questions such as:
- Am I familiar with the relevant Indigenous legal traditions, protocols, and perspectives?
- Am I relying on implicit biases?
- Have I taken time to learn, or am I relying on general legal knowledge?
The Code also imposes limits on public communications: commentary that is misleading, false, inaccurate, unverifiable, or contrary to the best interests of the public are prohibited—and lack of competency is not an excuse.4
The accessibility of professional legal commentary through law firm articles, conferences, and social media means that lawyers must be mindful of the weight their voices carry. Subject to little scrutiny, law firm articles often influence public discourse. As private practitioners, we know all too well the race to publish first and be seen as authoritative, as though speed is a measure of quality or competency. However, misrepresentations about Aboriginal law can contribute to increased confusion about legal processes and/or results, influence political decision-making, and amplify prejudice.
Misuse of competence
Not all misrepresentation stems from lack of competency. Some competent lawyers choose to make demonstrably false statements about Aboriginal law and Reconciliation. They advance arguments or public commentary that they know, or reasonably should know, misstate the law, ignore settled jurisprudence, or frame Aboriginal rights in deliberately reductive or polarizing manners.
For example, following the Cowichan decision, Premier David Eby stated that, “the court began the case assuring all parties that nothing would be decided in the case that impacted the interest of landowners in the title area, and then when the decision was issued, did the exact opposite.” 5
Cowichan did not legally impact private landowners in the claim area. It can be argued that the declaration of Aboriginal title may result in practical impacts, but the Court is clear that this is an obligation of the Crown. Ultimately, Eby’s statement reflects growing political discomfort with legal accountability and a clumsy effort to shift public frustration toward the courts, Indigenous peoples, or anyone other than the responsible party—the Crown.
Eby’s comments highlight another, less discussed dynamic influencing legal commentary: in the digital age, sensational content drives engagement. Responses to the proposed Land Act amendments demonstrate this clearly.
Late in the public engagement process, alarmist legal commentary improperly stated that Indigenous peoples were being given a “veto” over Crown land and that the engagement process was kept secret from the public. This commentary facilitated public controversy and, despite being a key legislative priority, the legislation was shelved.
Similar patterns have emerged following the provincial Gíihlagalgang "Rising Tide" Haida Title Lands Agreement6, the federal šxʷq̓ʷal̕təl̕tən - A Rights Recognition Agreement7, and in commentary surrounding Gitxaala and Cowichan.
Towards responsible legal discourse
Reconciliation in British Columbia operates in real time, through legislation, jurisprudence, and political choices, placing a heightened responsibility on lawyers. Legal commentary does not just describe the law, it shapes how Reconciliation is understood, supported, or resisted. Speaking authoritatively without adequate understanding risks misunderstanding, the erosion of trust, and potentially, one’s individual reputation. These risks can be addressed by grounding commentary within competency and the actual substance of the law. Lawyers cannot control how commentary is received, but they can control whether it clarifies the law or inflames misunderstandings.
In an era where Reconciliation is a legal obligation, responsible legal discourse is not optional. It is essential.
- Cowichan Tribes v. Canada, 2025 BCSC 1490
- Gitxaała v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430
- Law Society of British Columbia, Code of Professional Conduct for British Columbia (“Code”) at s. 3.1
- Ibid at s. 4.2
- Emily Joveski, “Eby blasts B.C. court rulings on Indigenous rights and title as overreaching” (10 December 2025), online: My Prince George Now
- Gaayhllxid • Gíihlagalgang “Rising Tide” Haida Title Lands Agreement between His Majesty the King in Right of British Columbia and the Council of the Haida Nation, 14 April 2024, online: Government of British Columbia
- šxʷq̓ʷal̕təl̕tən - A Rights Recognition Agreement between His Majesty the King in Right of Canada and Musqueam Indian Band, 20 February 2026, online: Government of Canada
