BC cattlemen ride to democracy’s rescue
The province’s cattlemen are throwing their considerable weight behind a lawsuit challenging the constitutionality of the BC NDP government’s most contentious legislation.
If successful, it could radically change the course of reconciliation in the province and neutralize what critics view as a direct threat to BC’s governance structure.
And it would force BC Premier David Eby’s hand on what to do with his prized Declaration on the Rights of Indigenous Peoples Act, but most certainly not in the way he likes.
Why is the BC Cattlemen’s Association wading into the DRIPA legal fray as an intervenor in the court challenge?
In two words: democracy and uncertainty.
“It’s hard to imagine who might not be interested with DRIPA because it impacts potentially, in my opinion, pretty much everybody in the province,” says association president, Warren Stump.
DRIPA confusion
DRIPA channels the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into BC law. But Aboriginal law experts say UNDRIP does not conform with Canadian constitutional law and threatens our governance structure in BC.
UNDRIP stipulates all legislation must be co-developed with First Nations, groups that have no electoral accountability to the broader public governed by those the laws.
As well, any territory an Indigenous group choses to claim is treated as owned, bypassing the onerous burden of proof required under constitutional law. And use of that land, including resource development, requires the community’s free, prior and informed consent. In BC, those territorial claims cover almost all of the province.
Shoving this framework into practice has triggered chaos on the ground as government decision-makers, Indigenous communities and non-Indigenous residents and businesses scramble to understand how to comply.
Ranchers are at the bleeding edge of this land-use imbroglio. Their livelihoods depend on grazing tenures and water rights on Crown land.
“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,” says Stump, who wrote about how DRIPA leads to a system of unworkable co-governance.
Podcast excerpt: ‘The biggest misstep’
Secret deals and mounting uncertainty
This crisis has been brewing for years.
According to Stump, the cattle sector first noticed international investors getting spooked by the uncertainty in BC’s market after the government’s botched attempt to amend the Land Act in spring 2024.
The Land Act changes would have handed First Nations statutory decision-making power (aka a veto) over land use. The NDP government ultimately backed down amid public anger, just months before the provincial election. But the retreat was superficial. Similar powers quietly resurfaced in “reconciliation” agreements the BC government subsequently signed in the name of DRIPA.
Take the agreement with shíshálh Nation which recognizes rights and title, grants joint and sole decision-making over land use, transfers Crown land, formalizes a controversial co-managment dock management plan and commits to $80 million in funding over five years. It was signed two months before the election and kept secret from the public for five months.
Pender Harbour and Area Residents Association pushed back with a lawsuit that evolved into the constitutional court challenge the cattlemen are now joining.
“The PHARA litigation is entirely about what does this UNDRIP mean? Is it sound to have DRIPPA as a foundation moving forward? Is it consistent with Canadian law? Is it consistent with our rights and freedoms under the Charter of Canada?” explains Stump.
The lawsuit alleges DRIPA fails to balance Indigenous and non-Indigenous rights, it exceeds the province’s constitutional jurisdiction by expanding Indigenous resource management, and breaches people’s democratic rights by ceding governance to Indigenous groups with no duty or accountability to the public affected by their decisions.
Podcast excerpt: ‘Where is this going to go?’
‘Existential threat’ to the rule of law
The legal landscape was already a minefield of uncertainty for private property owners. The BC government-Haida agreement awarded Aboriginal title over private land, then the Cowichan Tribes BC Supreme Court decision found Aboriginal title over private property in Richmond BC, followed by the federal government-Musqueam rights recognition agreement that recognized Aboriginal title somewhere in the Lower Mainland.
Layered onto all of this is the Gixaala BC Court of Appeal decision which found the province in violation of its own DRIPA-related legislation, penned by then-Attorney General David Eby, that directs all laws “must” conform to the Declaration Act.
The Premier denounced the Gixaala ruling and vowed to correct course. This was followed by three months of indecision and two months of political whiplash, featuring a series of flip-flops as the Premier pivoted weekly on how best to manage First Nations’ demands versus “significant legal liabilities” and the “existential threat” created by his own legislation.
Unsurprisingly, capital is nervous.
“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.’
“Anyone can challenge any law in British Columbia and question whether it’s consistent with the principles of UNDRIP. So that does leave us in a position of essentially we don’t know where we stand.”
Podcast producers: Rob Shaw and Zach Proulx