B.C. Premier David Eby has proposed amending the Declaration Act to remove First Nations’ access to the courts.ETHAN CAIRNS/The Canadian Press
Marilyn Slett is Chief of the Heiltsuk Nation.
My father is a residential school survivor. He grew up during a time when laws were used to ban our culture and deny our right to vote, and when it was illegal for an Indigenous person to hire a lawyer. As a result, Indigenous people did not have independent access to the courts to advance our land and rights claims. The Indian Act positioned Crown officials as gatekeepers to justice, and the result was predictable: When governments controlled whether disputes could even be heard, Indigenous rights issues were delayed, deflected, or ignored.
This is why I am among the many Indigenous leaders who are troubled by B.C. Premier David Eby’s recent vow to amend the Declaration on the Rights of Indigenous Peoples Act (DRIPA, or Declaration Act) in the spring, in response to the B.C. Court of Appeal’s decision in Gitxaała v. British Columbia (Chief Gold Commissioner). The court found B.C. has a legal duty to co-operate with First Nations to align its laws with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Mr. Eby reacted to the decision by saying courts should not “take over” the business of reconciliation. Readers will understand the instinct behind the Premier’s message: reconciliation should live in relationships, not courtrooms.
But Indigenous people hear something else as well. We hear a threat to return to a painful and familiar past, the one in which my father lived – where the Crown alone decides whether difficult reconciliation issues will be addressed at all.
B.C. passed DRIPA unanimously in 2019 in order to move reconciliation out of the realm of the Crown’s unilateral goodwill and into the realm of actionable law. Section 3 of the Act created a legal duty for the province to ensure its laws were consistent with UNDRIP, in consultation with Indigenous peoples – a co-operative framework to ensure reconciliation actually moves forward.
B.C. to amend Indigenous rights act after court ruling on mineral claims
The B.C. Court of Appeal’s decision in Gitxaała answered a straightforward legal question created by DRIPA itself: Can a court determine whether a provincial law is inconsistent with UNDRIP? The court said yes. That is not a “takeover” of reconciliation. It is the court doing its constitutional job of interpreting legislation and identifying legal inconsistencies.
The court did not rewrite the law. It did not prescribe policy. It sent the matter back to government, where the work to achieve consistency must occur, with Indigenous peoples.
The alternative that Mr. Eby is now signalling is a return to a system where the Crown can decide whether alignment with UNDRIP occurs at all. Without independent legal oversight, it can choose to defer, narrow, or simply forego reconciliation on the hardest issues. B.C.’s history makes this risk real.
Since the province was created in 1858, its governments have treated Indigenous territories as Crown land first, and Indigenous rights as a problem to be addressed later. In a province where most land was never ceded by treaty, this has produced generations of conflict, delay and uncertainty.
The Gitxaała case arose from this broken reality. It involved a mineral tenure system that allowed third parties to acquire interests in Indigenous territories without notice or consent. That system persisted not because reconciliation was impossible, but because there was no effective legal mechanism that required the province to deal with the problem.
Opinion: B.C.’s plans to update heritage protections could majorly affect property owners
DRIPA provides a narrow but essential form of access to justice, allowing Indigenous people to ask a simple legal question: does a provincial law meet the human rights standards B.C. has committed to uphold? If the courts are removed from that question, then the commitment effectively becomes optional.
Reconciliation cannot occur when one party can decide whether it happens at all. It must occur between the Crown and Indigenous peoples, as legal and political equals. Courts do not replace that work; they ensure it cannot be walked away from.
Limiting court oversight will not protect reconciliation. Instead, it risks returning B.C. to a time when access to justice for First Nations existed only when it was convenient for the Crown. That is what we hear, remember, and fear, when the Premier says he will amend DRIPA.
My father was in his 20s when we were finally allowed to potlatch legally, retain lawyers to bring land claims, and to vote. He is now in his 80s. He has seen the halting and often painful progress toward reconciliation. I hope during his lifetime we will see DRIPA maintain the integrity for which it was developed: a just and reconciled future for all.