B.C. has applied to the Supreme Court of Canada to review the December provincial appeals court decision that invalidated part of the Mineral Tenure Act for failing to align with the Declaration on the Rights of Indigenous Peoples Act.
The 2019 Declaration Act, commonly referred to as DRIPA, and the subsequent 2021 Interpretation Amendment Act, legislate that all B.C laws must be made consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a 2007 declaration affirming the right of self-determination for Indigenous peoples worldwide.
The Gitxaala Nation relied on this to secure a B.C. Court of Appeals ruling to invalidate the Mineral Tenure Act’s online staking rules for not including First Nations consultation.
This suddenly raised the question of whether it is up to the courts to decide if a B.C. law is consistent with UNDRIP, or if it is up to the legislature to do the work over time.
After the Gitxaala ruling was initially released in December, Premier David Eby said he believed it is up to the legislature, not the courts.
The Supreme Court appeal application, filed on Feb. 3, seeks a ruling on this question, arguing the lower provincial appeals court erred in finding otherwise. The appeal application also seeks to have this matter settled for court cases beyond B.C., arguing these questions are raised by similar legislation in other jurisdictions and at the federal level.
In a statement issued on Friday, Feb. 6, announcing the appeal application, Eby said the initial court ruling had created “confusion and concern” about the intent of DRIPA and about reconciliation efforts more generally.
“[DRIPA’s] purpose is to be a roadmap to stay out of court and try to find constructive resolution of shared concerns,” Eby said. “It reflects that reconciliation is a two-way street.”
Eby’s government is also planning to amend DRIPA to make it clear that courts should not intervene in this way.
The province has already begun discussing options for amendments with First Nations leaders to be introduced in the spring legislative session, according to a spokesperson for Eby.
Despite DRIPA having passed the legislature unanimously in 2019, the B.C. Conservatives want it repealed altogether in light of the Gitxaala ruling. The B.C. Greens, on the other hand, don’t want it altered.