The road to hell, as the saying goes, is paved with good intentions.
That’s DRIPA: a well-intended First Nations reconciliation manifesto that almost everyone in B.C. supported – perhaps because almost no one, including our premier, seems to have understood its full potential legal ramifications – and which now appears to be a ticking timebomb.
While it was sold to the public as nothing more than a map of the neighbourhood, it is now proving to be a kind of legal skeleton key to all doors, insofar as it may influence how B.C. laws are interpreted.
In the Gitxaala case, the Appeal Court found DRIPA to be “judiciable” – meaning it can now be considered by the courts to interpret B.C. laws.
As Premier David Eby himself has said, the ruling potentially puts the courts “in the diver’s seat instead of British Columbians.”
This potentially sets the stage for endless litigation that could set back reconciliation efforts by pitting First Nations against the rest of B.C., who have constitutional rights that may be at odds with DRIPA.
What is truly worrisome about the DRIPA crisis is that Eby appears to have lost control of it.
“The Eby government has created expectations that are in direct conflict with larger societal interests, and now it has to bear responsibility for this,” says Robin Junger, whose firm, McMillan LLP, is handling a court challenge that seeks a declaration that DRIPA is unconstitutional.
“The government is no longer in control of its legislative agenda.”
To recap, after the Appeal Court found that DRIPA was “judiciable,” Eby rightly panicked and announced his government would try to defuse this legal timebomb by amending DRIPA.
Then he announced he would temporarily suspend certain elements of DRIPA until it could be rewired somehow.
Then, on Sunday, after getting pushback from the B.C. First Nations Leadership Council, he announced that his new plan was to do nothing at all until the fall.
In an interview with Global TV, Geoffrey Moyse – who spent 30-plus years as legal counsel for the BC Attorney General – said that the First Nations Leadership Council now appears to be in a co-governing arrangement with the B.C. government with respect to DRIPA legislation.
“They have no obligations to the public interest for the other 5.7 million British Columbians, and they are co-developing British Columbia’s legislative agenda,” Moyse said.
“From my understanding, and my training as a lawyer, that is completely unconstitutional.”
It’s all in the interpretation
As I read things, it’s not DRIPA per se that is the problem, but the way it was activated.
An amendment to the Interpretation Act – section 8.1 – requires every act and regulation in B.C. to be “construed as being consistent” with DRIPA.
So far only a handful of acts in B.C. have actually been changed to make them conform to DRIPA. This opens all kinds of permitting decisions made by statutory decision-makers to potential legal challenges based on the fact they are not DRIPA-compliant.
“I really fear where this is all going,” said Todd Stone, a former BC Liberal MLA and current president of the Association of Mineral Exploration (AME), which represents the sector that has taken the first direct hits from DRIPA.
“None of this is conducive to a positive business climate that will attract investment to British Columbia.”
What went wrong on the road to reconciliation
It didn’t have to be this way. B.C. was making good progress on the reconciliation front.
We saw major developments – LNG projects, pipelines, mines, forestry harvesting agreements – supported by and involving First Nations. That doesn’t happen without reconciliation being at the heart of things.
There has been genuine cooperation between First Nations, industry and government in achieving mutual benefits through economic reconciliation.
But then we allowed the United Nations to intrude itself into Canadian sovereign affairs with the acceptance of the United Nations Declaration on the Rights of Indigenous People (UNDRIP) at both the federal and provincial levels.
As the Appeal Court noted in the Gitxaala case, “the Legislature has chosen to incorporate a complex, multi-faceted international instrument into domestic legislation, and, if possible, provincial enactments must now be interpreted consistently with that instrument in all its complexity.”
But UNDRIP and DRIPA are different beasts. Federally, UNDRIP is harmless in a way that DRIPA isn’t. Section 35 of the Canadian Constitution is still the superseding law with respect to aboriginal rights in Canada.
Whereas the federal government adopted UNDRIP as a kind of guidebook for reconciliation, it does not appear to have the same legal force that DRIPA does. There is no federal cognate – not yet, at least – to B.C.’s amendment to the Interpretation Act.
When DRIPA was first introduced through Bill 41, British Columbians were given certain assurances.
“Bill 41 doesn’t give the UN declaration itself the force of law and doesn’t create any new laws and new rights,” Scott Fraser, then minister of Indigenous Relations and Reconciliation, said in 2019 during a lengthy debate at third reading.
Based on those kinds of assurances, DRIPA was unanimously passed. Stone was among the MLAs who voted in favour of it.
But then the Interpretation Act was amended in 2021 to effectively give DRIPA the force of law. At this time, Eby was Attorney General, so he bears considerable responsibility here.
“Fast forward seven years later, and we find ourselves staring at the landscape where DRIPA has become everything we were told by government it would not become,” Stone said.
In the Gitxaala case, First Nations challenged the current claim staking process under the Mineral Tenures Act.
The Appeal Court relied mainly on Section 35 of the constitution when it ruled the Mineral Tenure Act breached the government’s duty to consult. But it also referred to DRIPA, finding that it may have legal applications.
“Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect,” the court ruled.
You can’t blame “activist judges” for this reading. The Appeal Court was simply reading DRIPA and the Interpretation Act the way they were written.
David Eby seemed to be genuinely perplexed that the court was taking the B.C. government at its word, and vowed to amend DRIPA to address this unintended effect.
But as Dwight Newman, a Canadian constitutional law expert, noted in a substack post: “Legislatures should not pass statutory rules if they do not want those statutory rules applied.”
Is DRIPA unconstitutional?
While attempting to affirm and cement aboriginal rights through DRIPA, the B.C. government may be neglecting the fact that non-aboriginal Canadians also have constitutional rights.
This raises the question: Did the B.C. government overstep its constitutional authority with DRIPA? A case now before the BC Supreme Court argues that it did.
The Pender Harbour and Area Residents Association (PHARA) is seeking declarations from the court that DRIPA is unconstitutional. Here is some background on that case.
“If we win, then the entire DRIPA, if it’s declared unconstitutional, it’s gone,” Junger said. “It’s like it never existed.”
If they lose, however, we will be stuck with a law that could paralyze the province.
Politicians like Eby can’t say they weren’t warned about the futility of implementing UNDRIP into Canadian law.
Jody Wilson Raybould, who is from the We Wai Kai First Nation, was federal Attorney General in 2016 when she warned that adopting UNDRIP into Canadian law was “unworkable.”
In the Globe and Mail Wednesday, she reiterated that she thinks it’s still unworkable, and took aim at Eby for his handling of DRIPA.
“It is now apparent that B.C. Premier David Eby operates without a clear vision of reconciliation or of the principles needed to advance it,” she writes.
“The end result is shifting positions, flip-flops on amending DRIPA or suspending it (or not), and an appearance of simply blowing in the political winds.”
Nelson Bennett’s column appears weekly at Resource Works News. Contact him at [email protected]
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