The British Columbia government had lofty goals when it implemented the Declaration on the Rights of Indigenous Peoples Act in 2019. That legislation was trumpeted as a big step forward in reconciliation with the Indigenous peoples of the province.
DRIPA heralded a new approach to consultation and collaboration with Indigenous groups in B.C., based on the principle of free, prior and informed consent contained in the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP. That principle entails a greater degree of deference to the concerns of Indigenous peoples, but does not bestow a veto.
That spirit of collaboration would reduce the sense of uncertainty hindering economic development in the province, particularly big resource projects in the interior and north. All of that was anchored by a commitment to bring provincial law into alignment with UNDRIP – eventually. But there was one thing B.C. didn’t count on when it made those big promises: a court taking the government at its word.
The government said in 2019 that the process of bringing its laws into alignment with UNDRIP would take decades. Indeed, after seven years, just 20 out of hundreds of statutes have been amended, an average of three a year. Despite those leisurely intentions, however, the actual wording of the legislation passed gave no wiggle room.
The amendment to the province’s Interpretation Act, which sets standards for how legislation is interpreted, could not have been clearer: “Every Act and regulation must be construed as being consistent with the Declaration [on the Rights of Indigenous Peoples Act].”
Not could, not may. Must. No delay was built in, no best-efforts asterisk included.
Unsurprisingly, a B.C. Court of Appeal decision last December took note of the vast gap between what the province had promised in legislation, and what it had delivered in fact, when ruling on a challenge to the province’s mineral claims system by the Gitxaała and the Ehattesaht First Nations.
They successfully argued that the system violated DRIPA since it allowed for the registration of mineral claims on Crown lands before any consultation with affected Indigenous peoples. “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 that overturned a lower-court ruling. (The dissent said it was not the court’s role to “adjudicate inconsistencies” between UNDRIP and B.C. law.)
As a result of that decision, every B.C. law not already amended to align with UNDRIP is now at risk, the government says. The fallout has been immensely damaging, exacerbated by an increasingly panicky response from the BC NDP government.
Premier David Eby first said he would amend the legislation. Following pushback from Indigenous leaders, Mr. Eby says he now aims to suspend parts of DRIPA for three years until the Supreme Court can rule. Meanwhile, public support for DRIPA is crumbling, according to a recent poll. Any investor faces crippling uncertainty over the basic question of what laws govern the province. And Indigenous communities are outraged by the government’s retreat from DRIPA.
This much is certain: B.C.’s reconciliation agenda is in tatters. Mr. Eby has not helped matters through a furtive process that has left the public in the dark about details, outside of leaks to the media, and has Indigenous leaders fuming – irony of ironies – about a lack of consultation.
Where to from here? Some high-profile Opposition Conservatives have said DRIPA should be repealed. That would be both provocative and unnecessary. The problem with DRIPA is not the core intention. The problem is that the B.C. government was careless in its drafting of the legislation.
Mr. Eby’s proposal to suspend parts of the legislation is also unwise. The best outcome is three years of economy-freezing uncertainty. The BC NDP might prefer to delay any change until after the next provincial election, slated for 2028. British Columbia cannot afford such a delay.
The BC NDP government needs to summon the political courage to amend DRIPA, and the Interpretation Act, in order to allow for legislation to be amended in an orderly way.
And then, it needs to get down to the hard work of rebuilding trust with Indigenous communities, through concrete actions, not grandiose promises.