The constitution was doing its job protecting Aboriginal rights, then DRIPA created a ‘big mess’
Shortly before publishing this podcast, Premier David Eby’s office announced his government will not introduce amendments to the Declaration on the Rights of Indigenous Peoples Act (DRIPA) this session.
Aboriginal law expert Geoffrey Moyse sat down with us this week to talk about the end goals of DRIPA and UNDRIP, what’s different about the first treaties ratified under them (introduced as legislation last week), and what it means to be co-governed by an elite group of Indigenous leaders without a public mandate who represent less than three per cent of the province’s population.
Podcast excerpt: Has co-governing already begun?
The Gitxaala BC Court of Appeal decision last December ruled that DRIPA is “the law” and all BC legislation must be interpreted through the lens of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). According to the Premier, this has unleashed “significant legal liabilities” in court cases against his government, creating an “existential threat.”
Indigenous leaders, in the form of the First Nations Leadership Council, is having none of it, and called Eby’s reasoning a “tall tale”
Eby vowed to amend DRIPA to neuter the provisions cited by the Appeal court. But after two overt attempts to get Indigenous leaders onside to accept his amendments of DRIPA, the premier has today backed down entirely… for this session at least.
Most likely, he will now, cap in hand, take the time to consult in a manner acceptable to the First Nations Leadership Council on the province’s strategy going forward. Though, one can only wonder how he will “negotiate” any kind of reasonable compromise when the other parties have thundered he cannot so much as touch a comma in DRIPA.
If, as Moyse says, UNDRIP and DRIPA have as end goals the co-governance of BC by Indigenous leaders, there may be no way to convince advocates to scale back their ambitions.
Yet, if this is the existential threat the Premier said it is, carrying infinite liabilities for the province, it’s hard to see how his backdown serves the wider public interest, or if indeed he’s considering the public good at all.
Is Premier Eby really in charge?
The need to have sign-off from an elite group of Indigenous chiefs is extremely problematic for democracy, says Moyse.
“It’s a pretty good indication that he feels he’s unable to move on governing the province without first nations basically agreeing to what he’s proposing to do,” Moyse says.
“You can’t govern a province waiting for two per cent of the population represented by a fairly activist [First Nations Leadership Council] to have to accede to whatever it is you want to do legislatively.
“It’s ridiculous. But it is a product of UNDRIP.”
So far, DRIPA has been an instrument of chaos
There has been considerable chaos and acrimony—not to mention legislative debate, court battles and media coverage—surrounding what DRIPA is and isn’t.
One indesputable fact is that this provincial legislation channels the principles of a United Nations declaration into BC law. And both the British Columbia and federal governments have embraced UNDRIP as the new “minimum standard for human rights” when negotiating Aboriginal rights and title agreements in this province.
That Premier David Eby was surprised the BC Court of Appeal adopted a similar logic in its Gitxaala decision last December remains a perplexity given he was the attorney general who introduced the two laws, DRIPA in 2019 and the Interpretation Act in 2021, responsible for breathing life into UNDRIP.
Whether you think UNDRIP is a political triumph or a threat to democracy, neither DRIPA nor UNDRIP conform to Canadian constitutional law and both have already begun to change how BC is being governed, says Moyse.
Podcast excerpt: ‘Entirely undemocratic’
Geoffrey Moyse KC has logged more than 35 years in the Aboriginal law trenches, most of those for the BC government as legal counsel on treaty negotiations and Aboriginal law matters. Now retired from the public service, he advises an eclectic roster of clients on the Aboriginal law landscape, including the Public Land Use Society. He is also a regular contributor to Northern Beat.
Podcast producers: Rob Shaw and Zach Proulx