B.C. Premier David Eby will discuss proposed amendments to the Declaration on the Rights of Indigenous Peoples Act with the province's First Nations leaders on Thursday.CHAD HIPOLITO/The Canadian Press
B.C. Premier David Eby is set to meet Thursday with the province’s First Nations leaders in his quest for approval to alter what was once heralded as a landmark reconciliation law.
More than 200 chiefs have been invited to the virtual meeting to discuss the government’s proposed amendments to the Declaration on the Rights of Indigenous Peoples Act (DRIPA).
The proposed amendments, according to a draft of the changes obtained by The Globe, would remove language that commits government to bring the province’s laws in compliance with the UN Declaration on the Rights of Indigenous Peoples, replacing it with a less stringent requirement to work toward aligning B.C. laws with the principles of UNDRIP. It is a shift from “must” to “may.”
For example, the existing law says the first purpose of the Act is to affirm the application of UNDRIP to the laws of B.C. The proposed new version would change that to say the purpose is “to contribute to the implementation” of UNDRIP.
Among the commitments enshrined in UNDRIP is the right of Indigenous Peoples to own, use and control their traditional lands, territories and resources. The declaration sets a standard for free, prior and informed consent if the Crown wishes to develop those lands and resources.
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The proposed amendments are in response to a recent court ruling that declared the law should have immediate effect. The proposed changes are aimed at preventing the courts from setting the pace of legislative reforms that are required under DRIPA. They come amid a string of setbacks for the government’s reconciliation agenda.
But opponents say the proposed changes are a major blow to the work of reconciliation and will lead to more uncertainty for business as Indigenous groups resort to the courts to press their rights.
“We’re in a very precarious situation right now, because how they [the government] handle this is going to tell us how they’re going to handle everything else,” said Huy’wu’qw Shana Thomas, a member of the First Nations Summit political executive and the hereditary chief of the Lyackson First Nation.
First Nations leaders have been provided with a draft of the proposed amendments, under the condition that they don’t disclose the contents of the cabinet document. Ms. Thomas did not comment on the proposed changes but said the chiefs have been presented with a solution to a problem they don’t believe exists, with a tight deadline to respond. It’s an engagement that doesn’t amount to consultation, she said.
A broad coalition of labour and environmental organizations as well as civil libertarians and faith-based groups have come out against the Eby government’s proposed amendments. United Steelworkers union leader Scott Lunny said in February he is “deeply concerned” that reopening DRIPA threatens a reconciliation agenda that is helping to create and protect jobs.
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Mr. Eby maintains the amendments are necessary because of a B.C. Court of Appeal decision in December that found the province’s mineral claims regime is “inconsistent” with the requirements of DRIPA. He has repeatedly said the law was never meant to be implemented overnight, and that the courts should not be dictating timelines.
Mr. Eby told reporters Wednesday that he will push changes through in this legislative session. “It is non-negotiable for the provincial government. We have to ensure clarity for British Columbians about the Act, what it is and what it isn’t.”
Chief Cheryl Casimer, with the First Nations Leadership Council, helped draft DRIPA. She said Wednesday she is disappointed in the Eby government for seeking to water down the law.
She said the Premier can expect to hear alternative solutions proposed on Thursday, but also a caution from the chiefs. “If you want take reconciliation back 20, 30 years, then we’ll go back. But it’s going to be a fight,” she said.
The December judgment establishes a new benchmark for the implementation of DRIPA, and the province said it creates significant legal risk, opening almost all its laws to challenge because so few have been brought into line with the law’s objectives.
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The 2019 law promised to ensure all provincial statutes and policies align with internationally recognized human rights as spelled out in UNDRIP. It was a process that would take decades, officials stressed at the time.
“Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect,” wrote Justice Gail Dickson in the majority opinion of the Court of Appeal, writing further that the “answer is obvious: UNDRIP and the Mineral Claims Regime are inconsistent.”
The case was brought by the Gitxaała and the Ehattesaht First Nations against B.C.’s Chief Gold Commissioner over the province’s automated online registry system that allowed prospecting and claims for mineral rights on Crown land. They argued the system is inconsistent with rights recognized in DRIPA, which underscore a duty to consult.
The province filed an application to appeal the December ruling on Feb. 3.
After DRIPA was passed unanimously by the legislature in 2019, B.C.’s NDP government pressed ahead with significant reforms. However, it has retreated on key initiatives in the face of public backlash.
“I feel like they scare easy. As soon as somebody raises a flag, or somebody says, ‘we have a problem,’ they just start to immediately circle back and that is unfortunate,” Ms. Thomas said in an interview.
Two years ago, the NDP government cancelled planned amendments to the Land Act, which would have allowed the province to share its decision-making powers over public lands with Indigenous groups.
In January, B.C. paused a major rewrite of the Heritage Conservation Act that aimed to improve the process for identifying and protecting historic sites in B.C., 90 per cent of which are Indigenous. Municipal governments raised objections to the proposed amendments, and the government has responded by diluting the reforms.
The province has amended 20 pieces of legislation since the law was passed six years ago to conform with UNDRIP, including five that deal with natural resources. There are hundreds of provincial statutes, but B.C. has yet to identify how many need to be amended.