A law can survive bad press, a court defeat, and even an angry Opposition, but only if the governing party itself keeps believing in that same law.
The Declaration on the Rights of Indigenous Peoples Act (DRIPA) has the dubious distinction of not only being run through a gauntlet of horrible press, a combative BC Conservative Opposition, push back from the business community and defiance from Indigenous leaders, it also fractured the solidarity of the NDP government caucus, when more than 10 MLA’s resisted changes to the legislation.
DRIPA is not a statute for reconciliation anymore.
It has evolved into an existential question over the rights and security of private property and the viability of resource development, unleashing “a tidal wave of litigation,” a constitutional law debate, allegations of undemocratic co-governance, and a crisis of legitimacy for B.C. Premier David Eby and his government.
As it currently stands, DRIPA is doomed.
When it first passed in 2019, there was a cloud of ambiguity surrounding it. The proposal was sold to legislators and the public as the province’s reconciliation vehicle, a high-minded framework that would imbue the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) into provincial lawmaking.
Yet Section 3 of DRIPA “mandates” government to align all provincial laws with UNDRIP. According to a B.C. government webpage, nearly 20 laws have undergone “legislative reform” to align them with DRIPA so far, including the Anti-Racism Data Act, purportedly one of the first laws to be “co-developed” with Indigenous people. Presumably, like the DRIPA legislation itself, it was done in “cooperation and collaboration” with the Indigenous leaders (as per UNDRIP), a process some have characterized as co-governing. Which is a very far distance from its sales pitch in 2019 as an “aspirational” document.
Gixaala unleashes a DRIPA storm
For a few short years, the initial framing of DRIPA as a benign “interpretive aide” to advance reconciliation made it possible for government, and even sympathetic members of the Opposition, to claim a shared victory for passing the law. First Nations could celebrate a historic legal commitment, while the NDP could reassure any suspicious or nervous voters or industry figures that there would be no legal disruption to Aboriginal rights and title.
Then the BC Court of Appeal decided that statutes would be read as if the words meant what they said.
Last December, the Gitxaala decision ruled the Mineral Tenure Act did not conform to DRIPA or the Interpretation Act, both of which were introduced by Eby when he was attorney general and essentially instruct all B.C. laws must adhere to the principles of UNDRIP. The ruling gave courts jurisdiction to strike down provincial laws found non-compliant with UNDRIP standards, effective immediately.
One veteran lawyer said the Gixaala ruling transformed DRIPA from a political promise into a living, breathing, potent legal tool. Now every statute touching land, resources, permitting, consultation or title is open to litigation for not conforming to DRIPA.
lf that is not a legal revolution, than it is right next door.
‘Significant legal liabilities’
Premier Eby said it exposed the province to “significant legal liabilities” and posed an “existential threat,” while one leading Aboriginal law expert called the decision “flawed” with “profound” consequences.
The timing could not have been worse for the NDP government.
Last August, the BC Supreme Court Cowichan Tribes ruling recognized Aboriginal title as the “senior interest” over 800 acres of private and public land in Richmond. The Cowichan judgment did not rely on DRIPA, but it did reference it along with a nod to the precedent-setting land title agreement the Eby government negotiated with Haida, recognizing Aboriginal title over the entire Haida Gwaii archipelago, including private property.
The Cowichan judgement also found the 150-year-old granting of Crown and city land titles was “defective and invalid” and an unjustifiable infringement of Cowichan title. And the real kicker, that protections in the Land Title Act don’t apply to private property when Aboriginal title is declared.
Public demands protection of private property
Nobody needs a law degree to understand why a homeowner in Richmond or anywhere else in B.C. ought to be terrified. Home purchases are the largest investment most people will ever make, and for many, represent their primary source of retirement security.
Understandably, the public backlash has been fierce. Business groups and the Opposition are calling for DRIPA to be repealed or drastically amended, municipalities have begun demanding private property protections. The largest property owner in Richmond is trying to reopen the case so that landowners perspectives can be considered. Montrose Properties has also urged the prime minister to join the case and argue that Aboriginal title is “extinguished” on private property.
The premier and his Attorney General have repeatedly promised to protect landowners’ interests but have so far not yet appealed the Cowichan decision.
Voters have noticed. Two-thirds of British Columbians said private property rights should take precedence over Indigenous decision-making when the two come into conflict, with 53 per cent agreeing DRIPA has gone too far in limiting provincial authority, according to recent Angus Reid polls.
In a May survey, nearly half of respondents backed the BC Conservatives’ commitment to repeal DRIPA, a shift that seems to track with a rise in popularity of the Conservatives. Last fall, the BC Conservatives were far behind the NDP in the polls, but in May they were 10 points ahead of the NDP, as the fallout from Cowichan, Gixaala and DRIPA pick up more steam.
Of those surveyed, 57 per cent said B.C. is on the wrong track, which may explain at least in part why Eby’s personal approval ratings have plummeted 16 points since last year.
Premier Eby runs out of wriggle room
Given the legal risks, the Premier cannot afford to leave DRIPA as it is. But neither does he have the political capital to fix it or the related Interpretation Act, both of which he introduced as Attorney General in 2019 and 2021, respectively.
Eby cannot even rally his own party around an amendment or suspension of DRIPA. Members of his government caucus threatened to vote against any changes, forcing him to back down from an earlier pledge to make any DRIPA amendments a confidence vote. With a one-seat majority, the Eby government has no wiggle room to accommodate dissident MLAs.
Meanwhile, First Nations Leadership Council has condemned any proposals to weaken, suspend or repeal DRIPA, which it co-developed with the B.C. government under former premier John Horgan. The council said amending the legislation would amount to an attack on Indigenous human rights and would will increase economic and political uncertainty.
In the most recent showdown between the leadership council and the Premier, Indigenous leaders yet again forced Eby into retreat, when chiefs threatened “collective resistance” in the form of legal challenges and mass protests to shut down major projects if Premier Eby altered the legislation in any way.
Eby responded by delaying legislative changes indefinitely while his government sits down with Indigenous leaders in the hopes of negotiating some kind of “collaborative pathway” out of this predicament. The development amounted to legislation being blocked by the First Nations Leadership Council, a move critics and at last one Indigenous leader called co-governance.
Eby government’s losses are Conservatives’ gain
While the Premier and his Attorney General stumble their way through the political minefield that DRIPA has become, the BC Conservatives have found a golden issue to unite the public behind their somewhat fractious young party. All five candidates running for Conservative leader have committed to repealing DRIPA if elected.
Among Iain Black, Caroline Elliott, Kerry-Lynne Findlay, Yuri Fulmer and Peter Milobar, the core differences seem to be how far the party should go in eliminating DRIPA and what measures should be taken to protect private property rights.
This matters because the next leader of the Conservatives may well be the next premier, with their platform forming future B.C. government policy.
The leadership race has fuelled dramatic interest in the party and growth in membership, which has swelled from 7000 at Christmas to over 42,000 today. Sooner or later, the NDP will have to face voters for a third time since forming government. Parties rarely win three consecutive contests, let alone four.
Barring a collapse of the party due to internal divisions, history and momentum belong to the BC Conservatives.
Reconciliation won’t be harmed by repeal of DRIPA
In the meantime, B.C. voters increasingly view DRIPA as a threat to their property and livelihood, as well as their democracy. The NDP cannot satisfy both the public clamour for change and Indigenous leaders’ demand to maintain the status quo. And kicking a decision down the road is no solution—delays are just confessions the provincial government has no real answers to this unfolding crisis.
For those who warn that repealing DRIPA will irreparably harm reconciliation, they are well-behind the times. DRIPA’s mere existence has done far worse.
DRIPA is now associated with secrecy, uncertainty imposed by the courts, and a non-consensual erosion of property rights. The Conservatives know this and could ride the wave of public dissatisfaction all the way to forming government.
Which leaves British Columbians with a choice. If Premier Eby lacks the courage or conviction to stand up for the public interests and repeal DRIPA, then voters may do it for him on election day.