With all the debate in and out of the courts about whether a United Nations declaration should dictate our reconciliation efforts, Canadians might be forgiven for forgetting – or not knowing – our country already has an able process to resolve Crown/Aboriginal relations.
Section 35 of the Constitution Act, 1982 is the provision in our highest law that recognizes and affirms existing Aboriginal and treaty rights. Despite this, in 2019 an activist NDP government introduced a different and completely unworkable “reconciliation framework” throughout British Columbia.
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) first found purchase in Canada as an uncalled-for recommendation of the Truth and Reconciliation Commission, which stipulated that the declaration form the basis for reconciliation in Canada, despite this country already having a constitutional framework in place for that very purpose.
In 2019, the B.C. government, under the late Premier John Horgan, passed legislation that brought UNDRIP into British Columbia law. The Declaration on the Rights of Indigenous Peoples Act, 2019 directed each and every law in the province must conform to the ill-defined human rights concepts set out in UNDRIP.
Some UNDRIP provisions are not only vague, they stand in direct conflict with section 35 of the constitution. For instance, Article 26 directs complete Indigenous ownership of any claimed territory with no requirement to prove “exclusive occupation” of those lands as is required by section 35.
DRIPA confers veto to correct ‘original colonial mistake’
Using Article 26, the Eby government assumes every square inch of British Columbia’s land base is “stolen” land – what the Premier calls the “original colonial mistake” that he is intent on correcting. Again these assertions are in direct conflict with Canadian constitutional law. Proven Aboriginal title may ultimately cover around six per cent, but certainly not 100 per cent of the B.C. land base.
And Article 32(2) of UNDRIP stipulates Indigenous consent must be obtained before any government decision can impact that so-called territorial ownership interest. Section 35 of the constitution says no such thing. Most legal experts know that its practical effect is to create a veto power for Aboriginal communities over government actions.
No one has any idea what that provision means exactly. Is it a veto over Crown decision-making or not?
The Supreme Court of Canada already realized that requiring Aboriginal consent or agreement before governments could govern in the public interest would put a giant stick in the spokes of reconciliation. The Eby government is apparently fine with that outcome.
The BC NDP said DRIPA would not confer a veto when it introduced the legislation in 2019, but the B.C. government under David Eby has since signed agreements with First Nations in the name of reconciliation that do exactly that.
It is ridiculous to think that the B.C. government can effectively run the province in the midst of these uncertainties. Which is why, perhaps, a growing chorus of people are saying the province is not being run effectively.
DRIPA is having its moment
DRIPA is currently enjoying a moment of infamy as the driver of radical provincial reconciliation policy and a major factor in several precedent-setting court decisions. Meanwhile citizens, Indigenous law experts, First Nations, industries, politicians, potential investors, and media outlets struggle to make sense of the law’s intention and the societal upheaval it is creating.
The stated intention of the legislature at the time DRIPA was passed by MLAs of all parties was for legislators, not the courts, to reconcile all B.C. laws with the articles of UNDRIP. That expectation was blown out of the water by the Dec. 5 BC Court of Appeal decision in the Gitxaala case.
For the second time in four months, a B.C. court referenced the principles of DRIPA in its ruling. In the Gitxaala v. British Columbia decision, two of three judges overturned an earlier court decision and decreed DRIPA was in fact “justiciable” as in, a law that can be used in a trial and upheld in court, and that all the province’s laws must immediately conform to UNDRIP.
With that judgment, the DRIPA nightmare became a full-blown constitutional crisis.
Critics unite in call to repeal DRIPA
Business groups, Independent MLAs, Indigenous law experts and the two Opposition parties are in agreement that DRIPA should be repealed, with legislators demanding the Eby government recall the legislature to do so.
In response, Eby appears to be leaning toward amending DRIPA, possibly in the spring legislative session, rather than appealing the court case. But first, the Premier said his government needs more time to review the Gitxaala ruling and consult with Indigenous bodies and business groups before it decides what to do.
His government’s ongoing inaction on this file engenders no confidence and adds to the uncertainty.
Four months after the BC Supreme Court’s Cowichan Tribes v. Canada decision recognized Aboriginal title on fee simple land and ruled Land Title Act protections for those private land titles don’t apply, the province has yet to fulfill its commitment to file so much as a petition for a stay of proceedings.
In fact, the only legal action the Eby government has taken of late – and it took it swiftly following the Cowichan ruling – was to support a declaration of Haida Nation Aboriginal title in the BC Supreme Court, including over the private lands on Haida Gwaii. The government did this with the full knowledge that a declaration of Haida Aboriginal title would – thanks to provisions in the Cowichan ruling – ensure the Land Title Act protections would not apply to private property within Haida territory.
Which can only mean the B.C. government intentionally created the same private property rights nightmare on Haida Gwaii that was, and is, being faced by private property owners in Richmond.
There is no world in which this can be called governing in the public interest.
Premier says court ‘confused’ over government’s intentions
In the case of the Gitxaala ruling, the Premier blames the court, claiming the judges over-reached. He said DRIPA was never intended to strike down B.C. laws or be wielded like a law in court against the government. It is up to legislators to determine B.C. laws, not the courts, Eby said following the decision.
Indeed, in 2021, when Eby was attorney general, he introduced an amendment (section 8.1) to the Interpretation Act with the following caution: “If a court considers a provincial law to be inconsistent with the UN declaration, this amendment does not allow the court to read in, read down or find that law to be of no force or effect.”
But Eby confused matters when he described the Interpretation Act provision as having “the requirement that provincial laws and regulations be read so as to be consistent with the UN declaration.”
In an additional bout of mixed messaging, he also said this: “But where a decision-maker is faced with two possible interpretations of the public interest in making a decision, the Interpretation Act, in this circumstance, would, we intend, instruct the decision-maker to prefer the interpretation of public interest that is consistent with the principles of the DRIPA legislation.”
Now Eby has the temerity to accuse the court of being confused about his government’s intentions for DRIPA. This week, he committed his government to assisting the courts “in understanding this is work for British Columbians to do, not the courts.” All of which drew a rebuke from the BC Trial Lawyers Association, which said the Premier’s comments “reflect a troubling national trend in which politicians use the courts as punching bags to score political points.”
The solution must go beyond simple amendments
If the BC NDP government did not intend for DRIPA to direct B.C. laws to literally conform to UNDRIP, here’s the Premier’s chance to prove it.
But the remedy will require more than a few simple tweaks to DRIPA.
Leaning into government’s original intentions, Premier Eby might recall what then Indigenous Relations minister Scott Fraser told MLAs during a 2019 debate on DRIPA. Fraser said it was the intention of government to interpret UNDRIP in a manner consistent with section 35 in the constitution.
This never happened.
Fraser also assured legislators the law would not to create new rights for Indigenous peoples or strike down any existing B.C. laws. The legislation passed unanimously, with the Opposition BC Liberals trusting the government’s stated intentions.
Given the BC NDP’s actions in the name of “reconciliation,” particularly under Eby’s watch in the past three years, Fraser’s aspirations were a stunningly incorrect representation of what actually unfolded in the name of UNDRIP and DRIPA. Most certainly, the current B.C. government has not interpreted UNDRIP in a manner consistent with section 35 and has left a trail of new rights and unprecedented decision-making agreements in its wake, completely over-stepping the careful framework built by decades of constitutional law.
Amendments cannot correct ridiculousness of applying UNDRIP in BC
DRIPA was flawed from the outset and the Premier, who was attorney general at the time, should have known it.
DRIPA should have expressly stated that neither DRIPA nor UNDRIP can create any new Aboriginal rights beyond those recognized and affirmed in the constitution. It should have also been clear that DRIPA and UNDRIP had to be interpreted by government in strict accordance with section 35 and in a way that ensured neither would affect or undermine private property rights. And DRIPA should have clearly directed that DRIPA and UNDRIP are strictly non-justiciable, as in, not liable to a determination of the court and not able to force any new B.C. laws.
Other sections1(4), 2(a),2(b), 3, 6, and 7 of DRIPA remain both legally problematic and entirely undemocratic. Yet the province continues to celebrate “reconciliation” agreements signed under these provisions.
Of course, these amendments, even if made now, would essentially render both DRIPA and UNDRIP superfluous and moot and make their adoption pointless. Because the truth is, no amount of DRIPA amendments will resolve UNDRIP’s complete inappropriateness to modern British Columbia and Canada.
Unfortunately, the federal Liberal government under Justin Trudeau enacted its own UNDRIP legislation in 2021, also with the unanimous, and perhaps similarly naive, support of all political parties. Regardless, Prime Minister Mark Carney is about to find out how equally ridiculous that adoption was when his government’s commitments to Indigenous consent under UNDRIP collide with the ‘elbows up’ push to advance major resource projects in the public interest.
Only a complete repeal of this enormous ideological mistake will properly rectify the mess the province now finds itself in. Then federal representatives will have to follow suit in the Canadian parliament to correct their own egregious mistake.