Canada: Update: BC DRIPA Implementation

Taking the Declaration on the Rights of Indigenous Peoples Act into our own hands

BC's DRIPA implementation is falling short

Since the ceremonial passage of the Declaration on the Rights of Indigenous Peoples Act ("DRIPA") in November 2019, we have been closely tracking the provincial government's progress in meeting its obligations under the new legislation. Now more than ever, we know how urgent the work of implementing Indigenous human rights in British Columbia is. The two primary ways that BC must implement the UN Declaration under DRIPA, to be undertaken in consultation and cooperation with Indigenous peoples, are:

• to "take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration" under Section 3; and
• to "prepare and implement an action plan to achieve the objectives of the Declaration" under Section 4.¹

The first annual report in July 2020 contained little substantive progress towards meeting either of these goals.² A consultative draft of the action plan, prepared in collaboration with the First Nations Leadership Council at the direction of First Nations, is expected this week, but so far little visible progress has been made on the alignment of laws requirement. A significant concern is that there are no clear public measures, nor an accountable process, for evaluating the consistency between the laws of British Columbia and the UN Declaration.³ This is resulting in a haphazard approach to legislative amendments that is compromising implementation—for example, in 2020, two proposed government Bills were halted because no measures had been taken to align them with the UN Declaration.⁴ Further, although section 7 of DRIPA provides authority for the provincial government to enter into consent-based agreements with Indigenous governing bodies⁵, to date no such agreements have been made. Meanwhile, in an absence of clear direction, administrative decision-makers and tribunals continue to make decisions without considering the standard of free, prior, and informed consent.

Knowing the ponderous way that government works and the timelines of the legislative process, Nations can and should demand better, but prepare for more of the same from BC. Ultimately, our peoples cannot wait for the implementation of Indigenous human rights. We need action now.

Taking DRIPA into our own hands

The passage of legislation to implement the UN Declaration was never, on its own, going to create the sea change that is needed for First Nations in BC. Rather, DRIPA is a first step and an additional, powerful piece of leverage that Nations can use to uphold our inherent rights. The legislation states that the UN Declaration applies to the laws of BC without delay.⁶ Accordingly, Nations are taking the implementation of DRIPA into their own hands by requiring that international human rights standards be met by all stakeholders and guests in their territories.

We at MT+Co. are energized and inspired by many of our clients who are proactively pushing for consent-based decision-making structures within G2G and industry agreements, as well as articulating and operationalizing their Indigenous legal orders as standards within these agreements. Nations are also pushing for transformation in key sectoral areas, such as mining, forestry, and child and family jurisdiction, demonstrating to the province what alignment with the UN Declaration looks like according to their own laws. Ultimately, the measures to evaluate consistency between the UN Declaration and the laws of BC must be set by the holders of Title and Rights – only then will Nations be able to trust that the implementation of DRIPA is living up to its promises.

Advancing Nations' vision for DRIPA

The work of coming together with our clients and Nations to build a shared vision for the future is necessary and it is why we do what we do. That's why some of the leading Indigenous lawyers and thinkers at MT+Co. will be hosting a webinar and dialogue on DRIPA implementation on June 17, to put our collective thoughts together about the challenges and opportunities presented by this new era in the BC legal landscape. We want to hear from you, and we also look forward to sharing some of our expertise on free, prior, and informed consent and Indigenous legal orders in agreement-making, while highlighting the inspiring work of some of our clients.

This will also be a forum for Nations to develop their views in preparation for consulting on the draft of the DRIPA action plan that will be released in just a few days.

Want More?

MT+Co.'s Indigenous Law Group presents on the central issue of implementing DRIPA on Thursday, June 17. In this webinar, our team addresses BC's DRIPA implementation so far, and provides guidance to take DRIPA into your own hands to advance your Nations' vision for DRIPA.

Our speakers:
Leah George-Wilson (Facilitator) | Tsleil-Waututh | Lawyer, Indigenous Law Group
Tamara Napoleon | Saulteau First Nations | Principal + Co-Lead, Indigenous Law Group
Merle Alexander, QC | Kitasoo Xai'xais | Principal, Indigenous Law Group

Register in advance for this webinar:
https://zoom.us/webinar/register/WN_z3k4bcrTRomhf9PpgH99Pw

Please note: this webinar is exclusive to MT+Co. clients. After registering, you will receive a confirmation email containing information about joining the webinar.

If you have questions or want to connect, feel free to email Yvonne.

Footnotes

1 Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44, ss 3 and 4 [DRIPA].

2 Province of British Columbia, Declaration on the Rights of Indigenous Peoples Act 2019/2020 Annual Report. online:

3 Residential School History and Dialogue Centre. Implementing UNDRIP in BC: Taking "All Measures Necessary" to Ensure Laws are Consistent with the United Nations Declaration on the Rights of Indigenous Peoples (2021) online: https://irshdc.ubc.ca/files/2021/04/UNDRIP_Article8_AllMeasures_FINAL.pdf [IRSHDC].

4 IRSHDC.

5 DRIPA, s 7.

6 DRIPA, ss 1 and 2.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.