B.C. Premier David Eby speaks at the legislature in Victoria, B.C., on Feb. 12.CHAD HIPOLITO/The Canadian Press
The B.C. government wants to temporarily suspend portions of its groundbreaking legislation enacting the UN Declaration on the Rights of Indigenous Peoples, Premier David Eby said Thursday.
Just a day earlier, Mr. Eby had said proposed amendments that would have permanently weakened the law were non-negotiable.
First Nations leaders rejected those amendments. On Thursday, he met with them to present a new proposal, which would only suspend portions of the law, allowing the work of reconciliation to continue, he told reporters at a news conference.
Mr. Eby said his NDP government’s law, called the Declaration on the Rights of Indigenous Peoples Act, or DRIPA, has exposed the province to legal liability. A B.C. Court of Appeal decision in December found that the province’s mineral claims regime is “inconsistent” with DRIPA’s requirements.
“The fact that we have to put this pause in place on certain sections of the act to address the litigation risk is very unfortunate,” he said. “We have to do something. A pause is, in my opinion, hopefully the least invasive way of addressing government’s concern.”
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The law was heralded when it was passed in 2019 as a landmark for reconciliation with Indigenous peoples in Canada. The federal government followed up with its own UNDRIP legislation in 2021. UNDRIP is the acronym for the UN declaration.
The provincial government’s move to pause parts of DRIPA marks a significant reversal of what once was seen as a BC NDP priority.
The Court of Appeal case challenged B.C.’s Chief Gold Commissioner over the province’s automated online registry system, which allowed prospecting and claims for mineral rights on Crown land. The Gitxaała First Nation argued that the system was inconsistent with rights recognized in DRIPA, which underscore a duty to consult with Indigenous groups.
“Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect,” Justice Gail Dickson wrote in the majority opinion of the Court of Appeal last December.
The province has filed an application to appeal the Gitxaała decision to the Supreme Court of Canada and Mr. Eby said he hopes for a final ruling in the next three years. The parts of DRIPA that were raised in that decision would be suspended until the courts rule.
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Mr. Eby has repeatedly said the law was never meant to be implemented overnight, and that the courts should not be dictating timelines.
DRIPA promised to ensure that all provincial statutes and policies align with internationally recognized human rights as spelled out in 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.
DRIPA was a process that would take decades, officials stressed at the time. So far, 20 pieces of legislation have been altered but hundreds have yet to be reviewed.
The Eby government argues that any of its laws could be open to legal challenge under the Court of Appeal ruling.
A spokesman for the mining industry said after the ruling that it could seriously jeopardize the province’s plans to jump-start mining projects – plans crucial to the Premier’s economic-development strategy.
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Mr. Eby said his office is putting the new proposal in writing to be presented to the chiefs formally, but he maintained that DRIPA will be changed in some form during the current legislative session.
The NDP has a narrow majority in the House, and Mr. Eby said the vote on the changes will be a matter of confidence, which will effectively force the three Indigenous members of his caucus to support their government. The three have been urged by First Nations leaders to vote against changes, but Mr. Eby said he isn’t worried about losing the vote: “We have a strong and united caucus.”
There are just 23 sitting days left in the parliamentary calendar this session, leaving little time to introduce, debate and pass legislative alterations.
“The window is tightening and we are getting to the point where we’re needing to get to the fine strokes to be able to introduce it and have it fully debated in the legislature,” Mr. Eby said.
First Nations have expressed frustration with the NDP government’s commitment to reconciliation, which has suffered a series of setbacks over the past two years. The government has retreated in the face of public backlash on key land reforms and is going to court to challenge two major Indigenous court victories.
Huy’wu’qw Shana Thomas, a member of the First Nations Summit political executive and the hereditary chief of the Lyackson First Nation, said the NDP Premier is taking “a huge risk” by calling a vote on DRIPA a matter of confidence, which could bring the government down if it loses.
She said the problem the government is seeking to address is contrived, and what the province should be focused on instead is moving faster to implement DRIPA.
“The Gitxaała decision didn’t overturn any legislation. All it did was say, ‘Look, you said you were going to do this, and you didn’t do it, and now you got to do it.’”
She added that the NDP government is losing the confidence of First Nations through a series of decisions that slow its reconciliation agenda. “The relationship has definitely soured.”