The B.C. NDP government is in the midst of amending its landmark reconciliation framework law, the Declaration on the Rights of Indigenous Peoples Act, otherwise known as DRIPA.
It’s in response to two recent court cases the government lost, and is appealing.
The first is known as the Cowichan Tribes decision. A B.C. Supreme court judge awarded Aboriginal title over a swath of property in south Richmond, B.C. last year. That decision has sparked confusion about how Aboriginal title intersects with private property rights.
The other is a B.C. Court of Appeal decision which found that the province’s system of granting mineral rights was inconsistent with DRIPA.
It’s left Premier David Eby facing pressure from all sides.
At least 100 First Nations and Indigenous groups have come out against any changes to DRIPA, saying that will water down the government’s commitment to reconciliation.
“We’re not in favour of amendments to the Declaration Act, full stop,” said Robert Phillips, who sits on the First Nations Summit political executive.
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Others want the law scrapped entirely.
“DRIPA needs to be repealed because of what it’s doing to our economy, our prosperity, our democracy,” said Caroline Elliott, one of the candidates vying to lead the B.C. Conservative party.
DRIPA was passed unanimously in 2019. B.C. was the first jurisdiction in Canada to enshrine the United Nations Declaration on the Rights of Indigenous Peoples into law.
But Eby has pointed to both court cases as evidence that DRIPA has had unintended consequences.
He says the proposed amendments are meant to provide clarity, when billions of dollars in resource projects — from mining to LNG — depend on First Nations consent.
“We are trying our best to work with chiefs across the province to be able to find a path forward to address the province’s concerns about the court decisions, while keeping in tact what the chiefs are hopeful to see,” he told reporters at an unrelated press conference this week.
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The government has been consulting with First Nations groups since January.
Some say it’s a rushed process, however. First Nations have also been asked to sign a non-disclosure agreement if they want specifics about proposed changes.
“I don’t know if we can call it consultation. What we’re seeing is an aggressive path forward,” said Leey’qsun (Lyackson) First Nation Hereditary Chief Shana Thomas.
The premier had a meeting with more than 100 First Nations chiefs this month that was not subject to a confidentiality agreement.
“In that meeting he made it clear to the chiefs of British Columbia that he has concerns about how the courts have interpreted the DRIPA legislation,” said Thomas, who also sits on the political executive of the First Nations Summit.
“And as a result of that, he’s looking to find a pathway forward that would not allow for the courts to tell the province how to align laws,” she added.
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The premier and attorney general have previously said some of the changes will include limiting the role of the courts in interpreting DRIPA. That led to a scathing rebuke from the Canadian Bar Association B.C. branch, which raised concerns about the constitutionality of any moves to restrict court oversight.
“There’s this kind of suggestion — which I strongly disagree with — that courts are somehow interfering with the journey of reconciliation which needs to take place between governments outside court,” said Aria Laskin, a Vancouver-based lawyer who specializes in Aboriginal and constitutional law.
Laskin, a partner at JFK Law, says it’s often a court decision that guides the government process, which is what happened in the Cowichan Tribes decision and the Gitxaala First Nation mining decision.
“Often the courts do need to help the parties understand the parameters of the law and then they go and negotiate,” she said.
Aboriginal rights and title has dominated the B.C. Conservative leadership campaign — all seven candidates are calling for DRIPA to be repealed.
“People are very concerned about the impact of DRIPA on the economy. It’s the uncertainty it’s creating on the land base, the impossibility of getting anything built when you have these consent provisions built in,” Elliott said. “People are really concerned about their private property rights.”
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Phillips says some of those concerns are based on misinformation and he worries the premier is motivated by political pressure.
“I don’t know how many more times we can say that private property is not on the table,” he said. “I do believe this amendment of DRIPA is very much — I’ll say it — a political ploy to avoid the numbers going down for the premier himself.”
Hamish Telford, a political scientist with the University of the Fraser Valley, says the premier seems to be between a “rock and a hard place.”
“Public opinion is tending in the other direction. But the pressure from Indigenous groups is quite intense and the government is trying to thread that needle.”
The government is set to introduce the DRIPA amendments this spring. But, with the Cowichan Tribes decision expected to reach the Supreme Court of Canada, many suspect the courts will have the final say.
