“DRIPA is an example, unfortunately a massive example, of our government dropping the ball and not looking out for a public interest.”
Tom Isaac
B.C.’s cattle ranchers are joining the court fight against the NDP government’s controversial Declaration Act.
The BC Cattlemen’s Association is seeking intervenor status in an ongoing constitutional challenge against the Declaration on the Rights of Indigenous Peoples law, said president Werner Stump.
“It’s hard to imagine who might not be interested with DRIPA because it impacts, potentially, pretty much everybody in the province,” Stump told Northern Beat.
“We have our businesses based on private land and the stewardship of private land, and we’ve all been made well aware of the concerns around the uncertainties with private land rights recently.
“Also, our business is dependent on grazing tenures and water rights. And so we’re just feeling a lot of uncertainty as to where those things lie and where the rights to those things lie in the future. And more broadly, we have concerns about the government structure essentially of British Columbia and what that’s going to look like in the future.”
The move comes as Premier David Eby struggles to figure out a path forward for DRIPA, following a landmark BC Court of Appeal ruling in December that the 2019 law on Indigenous reconciliation could be used to strike down other provincial laws.
The premier said that the ruling is untenable because it creates immense legal uncertainty. But he has faced opposition from First Nations leaders — and at least one MLA in his caucus — on making actual changes. He’s pushed off any amendments until the fall, in favour of more consultation.
Ranchers already impacted by co-managed land base
The cattlemen want to join an ongoing challenge by the Pender Harbour and Area Residence Association (PHARA) seeking to declare DRIPA unconstitutional.
The Pender residents went to court after the B.C. government used a cabinet order to grant the Sechelt First Nation the power to co-manage local dock tenures on the Sunshine Coast, impacting private dock and boathouse owners.
The BC Cattlemen’s Association is taking a more expanded view of the case.
Its more than 1,200 ranchers and cattle producers have extensive experience on the land base, and have already been impacted by the NDP government’s previous attempts to move to Indigenous co-management of public land, after aborted changes to the Land Act in 2024.
Those changes would have impacted the ability to lease Crown land for ranching and do things like drill wells, build fencing or repair farm structures without Indigenous co-approval.
The cattle ranching supports more than 8,700 jobs.
DRIPA inconsistent with Canadian constitution
The cattlemen have hired Tom Isaac, a leading Aboriginal law expert, to act as their legal counsel in the case. Robin Junger, another leading lawyer in the field, is representing the Pender Harbour group.
“DRIPA is an example, unfortunately a massive example, of our government dropping the ball and not looking out for a public interest,” said Isaac, a partner at Cassels Brock & Blackwell.
“The cattlemen association represents a very specific and important industry in British Columbia, with some strong views on these things, that need for proper balancing of interest, that need for democratic decision making. But really these things are core to the vast majority of British Columbians in most businesses.”
The court case makes three broad arguments against DRIPA.
The first is that DRIPA is inconsistent with section 35 of the Constitution Act which affirms Aboriginal treaty rights, because it does not allow for the balancing of interests between Indigenous and non-Indigenous people on issues, said Isaac.
“The Crown can infringe Aboriginal title, treaty rights and Indigenous rights, where it’s justified,” said Isaac. “There’s nothing in DRIPA that allows for that.”
That balance most often takes place on major projects where the government has a duty to consult, meaningfully alter its proposal to accommodate First Nations concerns where reasonable, but can still choose to proceed on that project if it is in the larger interest of the country.
“Canadian law is very clear there’s always a balance to be considered,” said Isaac. “You wouldn’t know that by the behaviour of the provincial government.
“Balancing rights is absolutely critical to reconciliation, that is what the Supreme Court of Canada has said many, many times.”
Citizens have right to democratic representation
The second argument in the case is that DRIPA exceeds provincial jurisdiction by exanding the extent to which First Nations can manage public resources.
“The submission made by PHARA is the province implementing DRIPA on its own intrudes into matters that are under the government of Canada’s exclusive authority and quite frankly creates the potential for Aboriginal rights to be recognized differently across Canada, which is on its face an unacceptable position,” said Isaac.
The third plank to the court argument is that by allowing co-management or co-government with First Nations, the province has violated every citizen’s right to democratic representation under section three of the Canadian Charter of Rights and Freedoms.
Non-Indigenous British Columbians could face regulation and decisions by a First Nations government they cannot join, vote upon or hold accountable.
“It is unconstitutional to share jurisdiction with undemocratic entities and with no apparent authority constitutionally to share that constitutional jurisdiction,” said Issac.
“Fundamentally, these governments are not accountable to the broader electorate. That is fundamentally offensive to the charter.”
Co-government is not sustainable
Werner said the use of land being tied up over decisions made by bodies that local ranchers aren’t allowed to join is concerning.
“We can’t have one group of British Columbians that has greater influence in the outcome or the direction that British Columbia goes,” said Werner.
“If we create a system where one body is not accountable to the general electorate, it is not sustainable because it breeds this possibility that decisions are not made in the best interest of British Columbia.”
The overall uncertainty about land rights, tenures, use of land and decision-making has taken a toll on the cattle ranching sector in attracting investor capital, said Werner.
“It doesn’t help the uncertainty that exists in this province and I would suggest that that’s at a critical level right now,” he said.
“We certainly see it in our industry and I know it exists in other industries and within the international investment community. They’re looking at British Columbia and saying: ‘Hey, these guys don’t have their act together. We don’t know what the rules are.’”