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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.
The elected chief councillor of the Heiltsuk Tribal Council says B.C.’s decision to scale back court powers under the Declaration on the Rights of Indigenous Peoples Act (DRIPA) is a step backwards for reconciliation. Marilyn Slett says DRIPA isn’t the problem and that it’s been a tool for trust since passing in 2019.
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“DRIPA needs to be repealed because of what it’s doing to our economy, our prosperity, our democracy,” said Caroline Elliott, one of the candidates vying to lead the B.C. Conservative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.
First Nations leaders slam rushed consultation process
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.
Premier David Eby has announced plans to amend DRIPA to scale back the power courts have in shaping reconciliation efforts in B.C. For insight on where First Nations stand, CBC’s Stephen Quinn spoke with Á’a:líya Warbus, the Conservative MLA for Chilliwack-Cultus Lake and a member of the Sto:lo Nation in favour of amending the act, and Canim Lake Band member and First Nations Summit political executive Robert Phillips, who opposes changing it.
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.
Premier David Eby says his government will make changes to the Declaration on the Rights of Indigenous Peoples Act to scale back the power courts have. As CBC’s Pinki Wong reports, dozens of First Nations are standing up to defend DRIPA.
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.
Some DRIPA concerns based on misinformation: First Nations leader
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.”
A landmark B.C. Supreme Court decision to recognize Aboriginal title over privately held land in Richmond, B.C. last year has ignited debate about ownership and reconciliation. For The National, CBC’s Georgie Smyth explains the significance of the Cowichan ruling and why the legal fight is far from over.
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.
