Canadians can be forgiven for not knowing what they were getting into when the Justin Trudeau government adopted the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP) in 2021.
An Angus Reid poll last year found 43% of Canadians hadn’t even heard of it.
It seemed harmless enough and a nice gesture towards reconciliation with First Nations.
But now that it has been activated in B.C, and threatens to paralyze the province, UNDRIP is starting to look like some malware script inserted into Canada’s constitutional software by a foreign actor — the United Nations.
A warning to the rest of Canada
Through B.C.’s Declaration on the Rights of Indigenous People’s Act (DRIPA), UNDRIP has already embedded itself into new treaties, and American tribes may be able to use it in a legal challenge to the Eskay Creek mine.
It may be too late for B.C. – we already clicked the link. But it may not be too late for the rest of Canada to run a virus check.
The Mark Carney government should treat UNDRIP like one of those spam filter warnings that warns you when an email originates from outside the organization. Take what is happening in B.C. right now as a warning: Do not open that attachment.
The federal risk
Unlike Victoria, Ottawa has not yet activated UNDRIP with legislation to align it with Canadians laws the way B.C. has done. But that appears to be its intent.
The federal government plans to “identify potential measures for aligning federal laws with the Declaration over time.”
Prime Minister Mark Carney should reconsider – and perhaps repeal – UNDRIP before it spreads from B.C. to the rest of Canada.
That includes not ratifying new treaties introduced in B.C., which contain potentially harmful UNDRIP language.
How UNDRIP and DRIPA differ
While both Ottawa and Victoria adopted UNDRIP as a framework for reconciliation with First Nations, B.C. took the additional step of passing legislation that requires all B.C. statutes and regulations to be “construed as being consistent” with DRIPA.
In the Gitxaala case, which challenged B.C.’s mineral claim staking process under the Mineral Tenure Act, the BC Court of Appeal read the new legislation exactly as it was written, which is to say it was badly written.
“Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect,” the court ruled.
An unintended legal weapon
David Eby rightly panicked because the ruling means every statutory decision made in B.C. is now potentially vulnerable to the challenge that the decision was non-compliant with DRIPA.
And here’s the kicker: Anyone can use it, not just First Nations. That may include Americans.
David Eby confirmed this in an interview with Stephen Quinn on the CBC’s Early Edition.
“A decision on a major project to allow it to go ahead — a mine, an energy project — could be reviewed and ordered back to government for re-decision,” Eby said.
“Any law in the province could be challenged by any person. It doesn’t require that an indigenous person bring the challenge.”
Imagine this scenario: A First Nations-supported project, like a mine or LNG plant, is challenged in court by some non-indigenous NGO based on the fact one of the statutes for permitting the projects was not DRIPA-compliant.
The transboundary challenge at Eskay Creek
The challenge to the Eskay Creek mine is a good example of how it might be used against the interests B.C. First Nations.
The Eskay Creek is supported by the Tahltan First Nation. But the mine project is opposed by a confederation of Alaskan Tribes, which are now using the Desautel Supreme Court decision to assert aboriginal rights in B.C.
DRIPA may now give them further ammunition in their legal challenge to the Eskay Creek mine.
The Southeast Alaska Indigenous Transboundary Commission (SEAITC) is seeking a judicial review of the Eskay Creek environmental approval on the basis they were not given proper status in consultations.
The SEAITC contends that “B.C.’s refusal to grant full consultation
status breaches those rights and contradicts the province’s commitments under the Declaration on the Rights of Indigenous Peoples Act (DRIPA).”
“Those Alaskan Indigenous nations will now use the Gitxaala decision’s interpretation of BC’s DRIPA as they pursue a challenge to the Eskay Mine,” writes Canadian constitutional expert Dwight Newman in his Law For Breakfast substack.
This is a recipe for paralysis in a province where natural resources and energy are the pillars of the economy.
We were warned
It’s not like we weren’t warned about the dangers of trying to make a non-binding international human rights instrument legally binding.
When she was Canada’s attorney general, Jody Wilson-Raybould warned First Nations leaders, and her own government, that UNDRIP was “unworkable” within the Canadian constitutional framework, and a “distraction” from reconciliation.
She recently reiterated this position in the Globe and Mail.
The Carney government needs to take what is happening in B.C. as a warning of what could happen to the rest of Canada.
“Are the feds set up for potentially the same thing? Absolutely,” Tom Isaac, a former chief treaty negotiator and current lead of Cassels aboriginal law group, told me.
Infecting modern treaties
In fact, UNDRIP is already embedding itself at the federal level through new treaties.
In recent days, the B.C. government has introduced legislation to formalize modern treaties with the K’omoks and Kitselas First Nations.
The K’omoks Treaty states: “The United Nations Declaration on the Rights of Indigenous Peoples is an authoritative source for the interpretation of this Agreement, and, accordingly, informs the Parties in their implementation of this Agreement.”
Given the unintended consequences we are now seeing with DRIPA, it’s a mistake to include UNDRIP in the treaties, said Robin Junger, a B.C. lawyer specializing aboriginal law.
“While the DRIPA is blowing up in his face, he (Eby) is going to repeat the same mistakes in a treaty,” Junger told me. “And a treaty can never be changed, unless the First Nations agree.”
Newman also has some words of caution over the insertion of UNDRIP into these new treaties.
“Having reached modern treaties would normally be an unqualified good thing, as modern treaties are an excellent win-win way of achieving clarity with Indigenous nations and resolving outstanding legal claims,” he recently wrote.
“But the BC government has done different things in these treaties than ever before and is muddying communications around them in ways that are deeply problematic and will cut against trust in institutions.”
A critical decision for Ottawa
Treaties are tripartite agreements, which means the federal government will need to ratify them.
As long as I have been a reporter in B.C. – since the late 1990s – I have supported modern treaty making, through my writing, as the best way to achieve reconciliation with First Nations. In December, I argued that treaty making in B.C. should be fast-tracked.
So it pains me to say that I think the Government of Canada should not ratify these new treaties until and unless UNDRIP is scrubbed from them. We have no idea what we may be getting ourselves into here.
“Modern treaties are very good things for certainty and predictability for Indigenous and non-indigenous people, but only if they’re properly crafted,” Isaac told me.
“Putting UNDRIP in is completely irresponsible, completely negligent, and will take us back 50 years in reconciliation.”
Nelson Bennett’s column appears weekly at Resource Works News. Contact him at [email protected]
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