B.C. Premier David Eby says legislative amendments are in the works after a court judgment invalidated part of a provincial law because it fails to adequately align with the Declaration on the Rights of Indigenous Peoples Act (DRIPA).
Eby warns the judgment could put the courts in the “driver’s seat” for determining what must be included in provincial legislation.
“It will take some time for us to come up with the appropriate amendments, but clearly amendments are needed,” Eby said on Monday, Dec. 8. He has also indicated that he is open to appealing the decision to the Supreme Court of Canada.
This is not good enough for the Official Opposition.
Because the decision has immediate legal implications, and the legislature is on break until February, Interim B.C. Conservative Leader Trevor Halford said he wants the legislature recalled so the Declaration Act can be repealed.
“Reconvening the house, I believe, is appropriate when a court decision creates urgent legal or constitutional consequences requiring immediate legislative action,” he said on Monday morning.
Halford said he would be willing to forgo all procedural time afforded to the opposition, such as question period and private members’ bill introductions, to repeal the act as quickly as possible.
Conflicting views on what the DRIPA does
In 2019, B.C. passed the Declaration Act, which is based on a U.N. declaration affirming the right of self-determination for Indigenous peoples worldwide. The act mandates that the provincial government align all B.C. laws with the U.N. declaration and requires the province to develop an action plan to do this.
The 2021 Interpretation Amendment Act takes this a step further, declaring that “Every Act and regulation must be construed as being consistent with the Declaration.”
The latest court decision applies these laws to a case in which the Gitxaala and Ehattesaht First Nations challenged the Mineral Tenure Act. The nations — located repectively near Prince Rupert, and the Northwest coast of Vancouver Island — argue that an automated online registration system for granting mineral claims is not consistent with the Declaration Act because it doesn’t allow for First Nations consultation.
The nations initially scored only a partial victory, with the judge finding consultation was lacking, but that it is not for the court to decide how to make the Mineral Tenure Act consistent with the U.N. declaration.
This was overturned on appeal, and in a split decision released Friday, two out of three judges say the Declaration Act applies to the existing law — that all B.C. laws must be viewed through the lens of the U.N. declaration.
“Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect,” the two judges found.
In dissent, the third judge argues that it is up to the B.C. government, not the courts, to decide how to align the province’s laws with the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP).
“Nowhere in the Declaration Act is the judicial branch invited or called upon to adjudicate claims of inconsistency between UNDRIP and British Columbia’s laws, and doing so would take the court outside of its proper role in our constitutional democracy,” Justice Paul Riley wrote in dissent.
What needs to happen now up for debate
Eby says the court appears to have some “confusion” about the intention behind the Declaration and Interpretation acts, and amendments are likely needed to provide “clarity.”
“But to be frank, it is absolutely crucial that it is British Columbians through their elected representatives that remain in control of this process, not the courts,” he said on Friday after the decision was first announced.
He expanded on these comments on Monday, saying it is the government that should be “setting the pace and choosing the laws to bring into alignment.”
B.C. Conservative house leader Á’a:líya Warbus, a member of the Stó:lō Nation, appeared alongside Halford to argue for full repeal. She warned of “unintended consequences,” and advocated for negotiating with nations individually.
She says the “blanket approach” of the Declaration Act risks leaving some nations behind. She also acknowledged the concerns of private property owners after this and the recent Cowichan Tribes decision.
“They want that legal certainty,” she said.
B.C. Greens House Leader Rob Botterell called all of this an “overreaction,” saying that recalling the legislature is “exactly the wrong thing to do.” He points out that the Declaration Act was passed unanimously in 2019, and this decision provides needed clarity on that law, which he says is exactly what the legal system is set up to do.
Botterell has advised on Indigenous legal issues as a lawyer. His read is that the decision provides a clear path forward that will involve negotiating with First Nations to fix the Mineral Tenure Act.
“It doesn’t suddenly mean that all provincial law is of no force and effect or that suddenly there’s massive change,” he said.