It has been nearly 10 years since the Truth and Reconciliation Commission put out its 94 calls to action to help guide the country toward meaningful reconciliation with Indigenous Peoples.
One of those calls was the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and it has been nearly five years since the ÎÚÑ»´«Ã½ government passed its own version of UNDRIP.
The Declaration on the Rights of Indigenous Peoples Act (DRIPA)—which came into force on November 28, 2019—was praised by First Nations leaders for the commitment to reconciliation it demonstrated.
But the legislation has recently become the target of both legal and political challenges. Its critics say it has become an unnecessary distraction from the project of reconciliation—unnecessary because all recent efforts with respect to addressing rights and title, including the recognition of Haida title over Haida Gwaii, could have been accomplished under existing Canadian law, without DRIPA.
Moreover, they say the act fails to balance the rights of non-Indigenous third-party interests with the rights of Indigenous Peoples.
DRIPA is now the subject of a court challenge, and Conservative Party of BC leader John Rustad has vowed to repeal it, saying that any act that causes friction “between peoples” does not advance reconciliation.
“We’re committed to removing the DRIPA legislation,” Rustad told BIV. “It’s creating friction between peoples, and any sort of act that creates friction from a people to a people will not end well, and we need to bring that to an end.”
But given the importance many First Nations have placed on UNDRIP and its role in reconciliation, repealing DRIPA could also cause friction.
“The undoing of DRIPA will create a lot of uncertainty and perhaps even chaos in discussions with First Nations,” BC Assembly of First Nations Regional Chief Terry Teegee told BIV. “Without DRIPA, I think many of those First Nations that want to have a say in how development occurs—or in their own affairs—will perhaps use all means necessary to protect their interests and rights, whether that may be civil disobedience or going to court.”
“ÎÚÑ»´«Ã½ government-to-government reconciliation will be set back decades if we return to an impoverished duty-to-consult, common-law-based form of reconciliation,” said Merle Alexander, a Kitasoo Xai’xais First Nation lawyer with Miller Titerle and Co. who was a member of the DRIPA development team. “If there is [a] significant regressive shift backwards on negotiation mandates, we will also likely see a substantial increase in litigation.”
Geoff Plant, a former BC Liberal attorney general and treaty minister, agrees that the repeal of DRIPA could set reconciliation back in ÎÚÑ»´«Ã½
“A world without the DRIPA statute is more likely to be a world where the policy leadership is happening in courtrooms rather than negotiating tables, and I’m surprised to hear that there are politicians who would prefer that outcome,” Plant said.
He agrees, however, that the ÎÚÑ»´«Ã½ government needs to address concerns over non-Indigenous third-party rights.
“Increasingly, it seems to me, the challenge for the province is not just in looking for opportunities for reconciliation, but ensuring that third parties are treated fairly, because we’re not going to achieve reconciliation if private property rights are not respected,” Plant said. “If third parties are not treated fairly, that will only breed resentment, and it will certainly not achieve reconciliation.”
Since DRIPA was passed in 2019, the ÎÚÑ»´«Ã½ government has also:
• Recognized Aboriginal title over all of Haida Gwaii;
• Signed a memorandum of understanding with hereditary chiefs to recognize Wet’suwet’en rights and title;
• Addressed treaty infringement through an agreement with the Blueberry First Nation that gives the nation more say over land and resource use; and
• Signed a consent-based agreement that gives the Tahltan Nation co-management powers over the Red Chris copper-gold mine.
While the Canadian government has adopted UNDRIP, ÎÚÑ»´«Ã½ is the only province in ÎÚÑ»´«Ã½ to have enshrined it into provincial law. DRIPA requires that provincial laws to be amended to align with UNDRIP.
Section 7 of the act allows for governmental power-sharing through consent-based co-management arrangements, like the one struck with the Tahltan First Nation for the Red Chris mine. It was also one of these co-management agreements—with the Shíshálh (Sechelt) First Nation—that triggered a recent court challenge.
In its petition to the ÎÚÑ»´«Ã½ Supreme Court, the Pender Harbour and Area Residents Association (PHARA) argued DRIPA is unconstitutional because it conflicts with section 35 of the Canadian Constitution, and that the ÎÚÑ»´«Ã½ government exceeded its authority when it passed an order in council granting the Shíshálh co-management powers over dock tenures. The management plan covers an area from Lang Bay to Roberts Creek on the Sunshine Coast and has implications for all private dock and boathouse owners.
The difference between Canadian law and UNDRIP is that Canadian law requires balancing third-party rights with Indigenous rights, said Robin Junger, a lawyer with McMillan LLP, the law firm that is representing PHARA in its legal challenge.
“I think one has to go past the politics of all this and look at the actual law,” Junger said. “And I don’t know how you square section 35 of our Constitution with the UNDRIP. The section 35 cases, they make clear that Aboriginal rights are clear but have to be balanced with other interests. The UN declaration does not have that same balancing of the interests.”
Tom Isaac, a former chief treaty negotiator for the ÎÚÑ»´«Ã½ government and author of the book Aboriginal Law, says the ÎÚÑ»´«Ã½ government’s promise to align existing laws in ÎÚÑ»´«Ã½ with UNDRIP is a promise it can’t keep.
“Making promises that can’t be kept—that is not helpful to reconciliation,” he said.
“It will be impossible to align every law and regulation of British Columbia with UNDRIP. And that doesn’t mean that ÎÚÑ»´«Ã½ or British Columbia is failing in the protection of Indigenous rights,” he added. “It is not designed to be part of a domestic legal system.”
Isaac said UNDRIP was drafted broadly so that it was applicable globally.
“I think it’s a relevant document, to be very clear, but the idea that Canadian laws need to be adhered to UNDRIP doesn’t, in my view, do a service to the constitutional protection that Indigenous rights receive within existing Canadian law.”
Ellis Ross, a former Haisla First Nation chief and current MLA for Skeena, voted in favour of passing DRIPA. He told BIV he now regrets doing so.
“This was my mistake,” said Ross, who has announced he will run as a Conservative Party of ÎÚÑ»´«Ã½ candidate in the next federal election. “I thought it was harmless, and I was wrong.”
But Ross said he doesn’t think repealing DRIPA will help reconciliation. It could be amended, he said, to address some of the concerns its implementation has raised.
Alexander, said concerns over Section 7 consent-based agreements are over-blown, but agreed that DRIPA could be amended.
“It could certainly be amended to clarify what the role of stakeholders or third-party interests are,” he said. “I think that does require further clarity.”
