B.C.’s UNDRIP Legislation Facilitates Reconciliation but Leaves Unanswered Questions

On October 24, 2019, the B.C. government introduced legislation which, if adopted, will be known as the Declaration on the Rights of Indigenous Peoples Act (Act). The legislation aims to incorporate the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the laws of British Columbia. The legislation has been received positively by Indigenous Peoples, but concrete actions must follow if government is to meet the high expectations created by the Act. The legislation will also have significant short and long-term impacts on resource development in British Columbia.

THE LEGISLATIVE PROVISIONS

The purpose of the Act will be to affirm the application of UNDRIP to the laws of B.C., contribute to its implementation, and support relationships with Indigenous governing bodies. An “Indigenous governing body” is simply defined as “an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982”. The province must “consider the diversity of the Indigenous peoples in British Columbia” during implementation of the Act, reflecting the fact that B.C.’s many different Indigenous Peoples have various types of governing structures.

The legislation requires the government, in consultation and cooperation with the Indigenous Peoples of B.C., to “take all measures necessary” to ensure B.C.’s laws are consistent with UNDRIP. The government will also be required to prepare and implement an action plan, and provide an annual report outlining the progress that has been made towards these requirements. In this respect, the legislation is similar to federal legislation introduced under Bill C-262 that was not ultimately passed.

Finally and perhaps most importantly, the legislation departs from Bill C-262 by providing cabinet with the authority to enter into agreements with Indigenous governing bodies that relate to either or both the joint exercise of statutory decision-making power by the provincial government and an Indigenous governing body; and consent of the Indigenous governing body before the exercise of a statutory power of decision.

OUTSTANDING QUESTIONS

The government’s news announcements concerning the legislation have promoted improved relationships with Indigenous Peoples and certainty for business. Those twin aims are laudable. However, with such a short Act and no detail about how the government intends to implement the legislation, many questions remain unanswered:

• A stated purpose of the Act is to affirm the application of UNDRIP to the laws of B.C. The government is also tasked with ensuring B.C. laws are consistent with UNDRIP. Assuming the legislation is adopted, can a B.C. law or statutory decision be legally challenged as inconsistent with UNDRIP? Or do the specific rules setting out how UNDRIP will be implemented require future legislation, such that UNDRIP is only in effect to that extent? The legislation and the government’s backgrounders are inconsistent on this point.
• As for the proposed agreements with Indigenous governing bodies, the definition of Indigenous governing body is very broad. There are no stated criteria for how such a body gains authorization from the Indigenous People it purports to represent. This quandary has resulted in litigation in the past, and can cause difficulty for governments and resource development proponents alike.
• The government has indicated that it will only enter into agreements with Indigenous governing bodies that have sufficient capacity. Capacity assessment of different bodies may prove difficult in practice, particularly when there are no criteria stated in the legislation.
• The government has stated that the legislation does not grant Indigenous governing bodies a veto. The question is whether agreements with Indigenous governing bodies will enable those bodies to prevent statutory decisions with which they disagree. If so, how will the government fulfill its role in ensuring the broader public interest is being met in respect of these decisions?
• Will the government require consent from all interested or affected Indigenous governing bodies? Or from all Indigenous governing bodies with agreements? Or will the government retain the right to approve a project even where Indigenous consent is not obtained, as appears to be the case with the incoming Environmental Assessment Act?
• Territorial overlaps among Indigenous Peoples are a longstanding issue. The larger or longer a project, the more challenging it becomes to secure consent from every interested Indigenous governing body. The legislation does not provide means for addressing disagreements among Indigenous groups.
• Presumably decision-making agreements under the legislation will need to address inter-related rights of other Indigenous Peoples, such as treaty rights and asserted aboriginal rights.

MOVING FORWARD

Recently, B.C. has relied on an increasingly wide variety of government-to-government agreements and processes to regulate development in the province. Experience has been mixed. In aquaculture, for example, new provincial policies provide that industry must now demonstrate that they have support from relevant First Nations in the territories where they operate before being granted new or renewed tenures, effectively operating as a veto. This approach is inconsistent with the government’s stated intentions in respect of the Act and its position on major projects like the Site C dam where, after a rigorous assessment process, the broader public interest supported proceeding even in the face of opposition from Indigenous groups. Determining which model will apply to which industry and how remains uncertain.

Indigenous consent for operations in their territories is the goal. An increasing number of businesses and Indigenous groups have met that goal, to their mutual benefit. Many more relationships are being developed and will, with time and good faith effort on all sides, achieve the goal. To the extent that the legislation supports that goal and provides a balanced means to achieve it, it will contribute to reconciliation and broader prosperity. What remains are questions as to how government will balance high expectations and competing interpretations about the meaning of UNDRIP, while continuing to promote a strong investment climate in British Columbia. Time will tell.

For further information, please contact:

Roy Millen                                604-631-4220
Sam Adkins                              604-631-3393

or any other member of our Indigenous group.