Premier David Eby says he “very firmly” believes his caucus has the votes to pass a bill suspending parts of the Declaration on the Rights of Indigenous Peoples Act (DRIPA), despite staunch First Nations opposition.
“My expectation is that the bill will pass and that we will not have an election on these issues,” he said on Wednesday, April 8.
And, he backed up his contention that this is necessary to counteract legal liability brought on by an appeals court decision that used DRIPA to invalidate parts of the Mineral Tenure Act, saying that more than 20 lawsuits have since been amended to take advantage of this novel legal approach, with two court decisions already relying on the precedent.
“It’s a very real and manifesting challenge that we face, otherwise we wouldn’t be taking any steps,” he said. “It is not something that we’re making up; it is something that we have to do.”
DRIPA is a 2019 B.C. law that formally commits the province to aligning its laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which affirms the right to self-determination for Indigenous peoples worldwide.
Eby wants to amend the law and the related Interpretation Act — both of which he helped create as B.C. attorney general — after the appeals court found the two acts invalidate other pre-existing laws that don’t align with UNDRIP. Eby said the intention was for the government, not the courts, to make this determination.
But it has proven difficult to get First Nations leaders on board, who say they fought long and hard for DRIPA, and don’t want to slide backwards on reconciliation.
After proposals to amend DRIPA and repeal parts of the Interpretation Act were met with pushback, Eby proposed on April 2 to suspend the relevant parts of those acts for three years instead, giving the government more time to appeal the court decision to the Supreme Court of Canada.
But First Nations have not backed down, with many vocally opposed to the suspension plan. Robert Phillips, the political executive of First Nations Summit, said Indigenous groups “cannot afford to ‘pause’ reconciliation.” Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs called efforts to amend DRIPA “asinine.”
Phillip is also married to an NDP MLA, Joan Phillip.
Eby acknowledged that this decision is difficult for her and the two other Indigenous NDP MLAs, Tamara Davidson and Debra Toporowski.
“This is incredibly challenging for them personally,” he said. “I want to recognize that.”
But he said they, and everyone else in the caucus, recognize the implications of the appeals court decision.
“It is not optional work — it is necessary work,” he said. “And our MLAs also understand the very serious litigation risk that has been posed to the province.”
Eby plans to make the suspension plan a confidence vote in the legislature, meaning his government would fall if it is voted down. And he said he still expects to introduce the bill this session, calling it “crucial” for the province — hence the plan to deem it a confidence measure.
With a one-vote majority for the NDP, an election could be triggered if he is wrong and any MLAs decide to break with the caucus, though there are a few Independents he could lobby to try to make up the numbers. The two Green Party MLAs say they will not support the bill if First Nations are against it.
Interim B.C. Conservative Leader Trevor Halford says his party will not support anything short of full DRIPA repeal.
And he reckons the DRIPA suspension plan will lead to a less reliable legal environment in the province.
“I’m worried that the changes that he’s putting forward are going to bring less certainty than we actually have today,” he said.
Eby plans to introduce the bill before the end of the Spring session on May 28, but did not commit to when.