Proposals to alter or repeal the Declaration on the Rights of Indigenous Peoples Act (DRIPA) are not going over well with First Nations leaders across B.C.
Robert Phillips, political executive of the First Nations Summit, an organization tasked with facilitating treaty negotiations, said he was “surprised” to hear the talk of amendments after six years of working to align provincial law with the declaration and basing agreements on that commitment.
He called it an attempt to “change the rules as we play the game.”
Premier David Eby is working to amend DRIPA in response to recent court decisions, but Indigenous leaders say this could create more economic uncertainty and endanger hard-won progress on reconciliation.
So far, 59 B.C. First Nations have signed a letter demanding Eby hold off. Several large umbrella organizations, such as the B.C. Assembly of First Nations, the Union of B.C. Indian Chiefs and First Nations Summit also signed the letter.
The letter warns of a growing “negative narrative” that blames First Nations for creating uncertainty while ignoring the historical reality that B.C. was settled without treaties. It also cautions that major resource projects underway to stimulate the economy need the assurance provided by the Declaration Act, which offers a “clear, principled pathway” for First Nations, industry and government to work together.
Phillips said there is “growing frustration” among Indigenous leaders with this happening so soon after the government forced through bills 14 and 15 last year — the twin pieces of energy and resource project fast-tracking legislation passed against the objections of many First Nations leaders.
Some also say public stoking of property rights fears by both government and opposition politicians in the wake of the Cowichan Tribes decision is stirring backlash against First Nations and eroding Indigenous rights.
“There is just this really strong anti-Indigenous sentiment that is emerging,” said Tara Marsden, of the Gitanyow Hereditary Chiefs. “And government is not doing enough.”
Phillips and Marsden say the premier should be working to combat misinformation, to dispel the notion that people’s private property could be taken away based on these decisions, and to implement the changes required by DRIPA before courts intervene.
“We need a champion, and that’s what we expected from the premier,” Phillips said.
The need to find a path forward
B.C. Assembly of First Nations Regional Chief Terry Teegee says the recent court decisions don’t actually represent an effort to take away people’s private property, but he says First Nations should be involved in deciding how unceded land is used.
He points out that most First Nations didn’t get a say in developing local bylaws and rules — these were imposed on them.
A solution could involve compensation or a trade-off of other land, but he said it does not mean that property owners are the ones who should foot the bill.
“Private property owners are caught in the middle,” Teegee said, and it “falls on the province” to come up with an arrangement to satisfy both landowners and First Nations.
Teegee called these recent court decisions a “real reckoning” with judges broadly recognizing First Nations’ right to self-determination.
“Governments, whether it’s a provincial or federal government, need to come to the table and start negotiating and figuring out some solution, rather than dragging their feet and blaming First Nations,” he said. “We never created these legislations. We’ve never given up rights to our lands, nor our ability to make decisions on our lands.”
Eby counters that efforts to alter legislation are an attempt to keep these matters out of court and to solve disagreements at the negotiating table instead.
“That is the message I’ve delivered in private, I’ve delivered in public, to the First Nations leaders across the province, and to all British Columbians,” he said on Tuesday (Jan. 7). “That is our government’s commitment to protect private property, businesses, and individuals, and to do the work directly with nations, not through the courts whenever we can.”
But he says convincing people of this is “challenging work.”
Efforts to amend or repeal DRIPA
DRIPA was introduced in 2019 to align B.C. law with a United Nations declaration affirming the worldwide right to self-determination for Aboriginal peoples. The provincial government later introduced the Interpretation Act, which takes this one step further and requires all B.C. laws to be made consistent with the declaration.
Since these laws were passed, B.C. courts have begun to interpret provincial law with them in mind. This is true of both the Cowichan Tribes ruling, which found Aboriginal title can exist on private property, and the Gitxaala ruling, which orders changes to be made to the online claim staking system defined under the Mineral Tenure Act.
B.C. Conservative leaders now want to repeal DRIPA altogether — even though it passed by unanimous vote. Eby rejected these calls, but does say changes are needed. He hasn’t revealed exactly what amendments might look like, other than that they will prevent courts from using DRIPA to invalidate B.C. law and will protect private property rights.
“It was not for the courts to take over that work,” Eby said. “The amendments will make that clear.”
First Nations leaders argue that courts are supposed to provide clarity to laws — and that this is how the system is supposed to work. Phillips argues that changing the law in response undercuts work done based on that law.
“It deflects, it reflects, it detracts all the work that we’ve been doing,” he said. “Things have been basically put to a halt.”
How changing the law could slow project progress
The latest of these cases involved the Gitxaala Nation in northern B.C. suing to change the Mineral Tenure Act so the nation could assert more control over mineral claims in its traditional territory. Other area nations, including the Gitanyow Hereditary Chiefs, acted as intervenors.
Marsden is the Gitnayow sustainability director and attended the hearings.
“I sat in the court, I listened to the government argue essentially against the effectiveness or the efficacy of their own legislation,” she said.
Meanwhile, the provincial and federal governments are pushing billions of dollars in natural gas, mining and energy projects in the region. Marsden said it is difficult for small northern First Nations to respond, and the push for shorter and shorter timelines makes it even harder.
The Declaration Act was intended to make this process smoother and easier by creating a framework for consultation.
“On the one end, Premier Eby wants to say ‘don’t worry, we’re going to appeal these court cases, we’re going to amend DRIPA, we’re going to do all these things to get industry happy,’” she said. “But then, ‘don’t worry, First Nations, we’re also going to maintain some level of status quo with you.’”
Teegee called the decision to amend DRIPA “political,” and Phillips says the government is making decisions in the “court of public opinion.” This risks damaging years of co-development work, which has finally reached a place where First Nations feel comfortable partnering in major projects.
“We need to create certainty, we need to expedite the process, we need to have the jobs, revenue sharing, and all of this has to happen,” Phillips said. “But not at all costs.”