Most of us are familiar with the new-found political urgency to kick-start the Canadian and provincial economies. Nowhere is that urgency more emphatic than in B.C. where the ideologically far-left NDP finds itself in the awkward position of having to quickly enable major projects in the natural resource and infrastructure sectors to boost a heavily indebted, under-performing provincial economy.
Premier David Eby has repeatedly stated his eagerness to get on with big project approvals, despite his administration’s long-stated resistance to natural resource development, particularly of the fossil fuel variety.
A large part of his government’s plan to meet these duelling demands apparently is to allow a handful of First Nations-partnered LNG projects to continue advancing, and to buttress our hydro-electric power with an onslaught of Indigenous-owned wind farms.
Then this month, his ministers introduced two pieces of legislation to hurry along infrastructure projects like schools, hospitals, and mines, and waive environmental assessments on “green energy” projects.
This is where the economic demands of trying to pull the provincial economy off the ropes could collide with the impractical, ideology-based reconciliation agenda of the BC NDP government.
As an expert in Indigenous law and a keen observer of B.C. government’s ongoing and mostly off-base reconciliation efforts, I offer this analysis of the situation.
Indigenous leaders call on BC NDP to ‘Kill the Bill’
Indigenous reconciliation by governments typically does not attract much public attention until something egregious takes place, such as when the B.C. government developed the 2024 Land Act amendments, which proposed joint statutory Indigenous/provincial government decision-making across the British Columbia land base.
The amendments essentially would have given Indigenous nations veto ability over land use within their asserted territories. When the contents of the proposed new law became public, the backlash from British Columbians was fierce, and the B.C. government backed down.
This time around, the pushback is coming from Indigenous groups, along with mayors and others, to the Renewable Energy Projects Act (Bill 14) and the Infrastructure Projects Act (Bill 15). First Nations leaders say the bills were drafted by the NDP unilaterally and have called on the Premier to withdraw them completely or engage nations in co-developing revised legislation.
So far, Eby has refused. This, despite having created the expectation for joint statutory decision-making and co-policy development in the first place.
The demands of trying to pull the provincial economy off the ropes could collide with the ideology-based reconciliation agenda of the BC NDP government.
If enacted, the new laws will give the B.C. Cabinet unprecedented and overriding powers to bypass existing provincial legislation, environmental assessments, and municipal authorities to speed approval of whatever projects government deems of “provincial significance,” at any given time. Eby said private projects in a First Nation’s core territory (however that will be defined) will not be fast-tracked without Indigenous consent.
First Nations leaders are unconvinced by the ‘trust us’ argument and wary of the province having such “unfettered powers,” and have called on the government to “Kill the Bill,” so that additional consultation can take place. Otherwise, they have a warning or a prediction.
“If the province wants to fast-track projects, these bills are not going to do that, they are setting the stage for bigger fights,” said Union of BC Indian Chiefs president, Grand Chief Stewart Phillip.
Eby government trying to serve two masters
Regardless of Eby’s commitment to consult on individual projects later on, Indigenous leaders say they have been cut out of the legislative process, after having been given an unprecedented role and input on other major policy fronts.
The move was deliberate. Likely done to avoid unpleasant and potentially unproductive discussions required for government to meet its undemocratic, co-drafting commitments pursuant to the Declaration on the Rights of Indigenous Peoples Act, 2019 (DRIPA), while simultaneously and urgently pushing ahead with a new “pro-development” agenda.
Premier David Eby may have been trying to balance these opposing forces when responding this month to criticisms of Bill 15 by Indigenous leaders: “There is no significant land-based [infrastructure] project that takes place in this province that doesn’t have direct Indigenous involvement.”
In fact, nowhere in Canadian law is there a requirement that an Indigenous population of less than seven per cent of an overall provincial populace of nearly six million people is to be accorded “joint legislative drafting authority” with the government around potentially every proposed provincial enactment that will affect not just the seven per cent but the other 93 per cent of the British Columbian population as well.
This concept is as ludicrously undemocratic as were the proposed amendments to the Land Act in 2024. My own thesis is that the commitment of the BC NDP to its UNDRIP-based reconciliation agenda has always been more ideologically driven than anything borne out of practicality.
Now, faced with the realities of a massive deficit and flagging revenues, the government must retreat from its overstated UNDRIP commitments as it scrambles to stimulate economic growth in B.C. – a deeply problematic situation for a political party that has publicly espoused its own specific gospel of “reconciliation” based entirely on pursuing UNDRIP, while effectively sidelining Canadian law.
Time will tell if Bill 15 becomes a flashpoint along the continuum of escalating tensions, but most certainly a succession of BC NDP governments have marched us to this juncture, mostly without public consultation whatsoever.
UNDRIP ‘ownership’ inconsistent with Canadian constitutional law
DRIPA figures prominently into the current stand-off between Indigenous leadership and government on Bills 14 and 15. Expectations of joint legislative drafting with Indigenous leaders and their lawyers also emanate from DRIPA. As did last year’s failed Land Act amendments.
Section 7 authorizes the government to enter into agreements with Indigenous governments to provide for them to hold joint decision-making authority with government officials, or the requirement for their consent prior to statutory decisions being taken by the government.
The roots of this expectation and offers of governmental power-sharing can be traced back to DRIPA’s inspiration: UNDRIP.
Two articles of UNDRIP are highly contentious when compared to Canadian constitutional law on Aboriginal rights. The prescribed “ownership” of all lands and resources located within any claimed Indigenous traditional territory (Article 26) bears utterly no geographic resemblance to the concept and geographic limitations of Aboriginal title as defined by the Supreme Court of Canada.
Neither does Canadian law hold any requirement for obtaining Indigenous consent (Article 32(2)) to any government action that could affect Article 26’s supposed “ownership” interest.
Arguably one of the spin-off effects of the B.C. NDP government’s apparent affinity for Article 26 “territory-wide” ownership of all lands and resources is this government’s overt recognition of Indigenous territory-wide legal jurisdiction.
To my knowledge, no Canadian court has determined the legal validity under Canadian law of any such Indigenous legal territorial jurisdiction. Nonetheless, the BC NDP have been keen to recognize that concept. It’s part of what gave rise to section 7 in DRIPA and its provision for “joint decision making” being based on the erroneous assumption that the Crown and Indigenous “governments” both have operative legal jurisdiction over the entirety of claimed traditional territories.
‘Consent’ at odds with growing the economy
But the biggest potential problem for the government in trying to pursue its new urgent need for economic development lies in Article 32(2) of UNDRIP in the concept of “consent,” a gospel plank in the BC NDP reconciliation platform, publicly and heartily endorsed by the Eby government.
Storm clouds may loom on the horizon for the province, because very strong Indigenous expectations are now built up for how their consent will be sought and required for any and all proposed natural resource and infrastructure projects. This while Canadian constitutional law is clear that no such veto authority exists.
It will be fascinating to see whether the BC NDP commitment to UNDRIP can survive as it tries to incent economic development. The adoption by government in DRIPA that UNDRIP must form the framework in Canada for Crown/Indigenous reconciliation, may come back to haunt them in a seriously unpleasant way.
The public was not asked
The BC public has never been asked for their views on how they would like to see reconciliation proceed in this province. Nor were they ever asked whether they agreed UNDRIP should be the undisputed framework for Crown/Indigenous reconciliation in British Columbia.
Rather UNDRIP has been forced upon the public by progressive governments – the BC NDP and the federal Liberal party – and the then Opposition BC Liberals being asleep at the switch.
Canadian constitutional law provides a solid legal basis for Crown/Indigenous reconciliation relevant to the context of the Canadian state. Canadian Aboriginal title (Indigenous land ownership) does not blanket entire claimed territories as Article 26 of UNDRIP insists it does. Canadian consultation law does not allow Indigenous groups to have veto authority over government decision-making as Article 32(2) says they do.
If this province is to move ahead in securing a robust economy once again, the government’s slavish attachment to UNDRIP and all its trappings will need to be set aside and replaced by Canadian constitutional law. At some point, the government needs to come clean with British Columbians about UNDRIP commitments made by the government to First Nations without public consent.
While there is a lot to criticize about section 35 of the Constitution Act, 1982 and the manner of its interpretation by the Supreme Court of Canada, at least it somewhat tries to balance the interests of all Canadians, unlike UNDRIP which does not purport to do any such thing.