One of the things Premier David Eby promised to deliver this fall was some kind of resolution to the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which threatens to paralyze this province if it’s not amended.
Instead, we’re going to get a provincial election.
The Legislative Assembly has now been dissolved, and a provincial election called for October 24. So nothing is going to get done this fall, I suspect.
Initiative petition seeks DRIPA repeal
But there is another vote going on this fall – a petition to repeal DRIPA.
Elections BC has approved an initiative petition that calls for the repeal of the DRIPA.
If it succeeds, it could force the hand of whomever forms the next government to repeal DRIPA altogether.
The initiative is led by Conservative MLA Harman Bhangu and runs from Oct. 26 to Jan. 25, 2027.
Bhangu will need 10 per cent of registered voters in all 93 ridings in B.C. to sign the petition. If he succeeds, it will require the B.C. Legislature to either approve a draft bill on repealing DRIPA or put the question to a referendum.
This initiative is part of a non-Indigenous rights movement that has begun to foment in B.C. in response to the David Eby government’s perceived land back agenda – embodied by DRIPA – and the Cowichan court decision, which may have implications for private property rights in Canada.
There is a growing fear among non-Indigenous British Columbians that the Eby government, in its zeal to achieve reconciliation with First Nations, has gone too far in one direction, has been ceding governance powers to First Nations, and has been failing to defend the interests and rights of non-Indigenous citizens.
The growing frustration with the Eby government’s handling of Aboriginal rights and title issues was on full display last week at a panel discussion co-sponsored by the Public Land Use Society (PLUS) and the Northern Beat.
Who is in charge?
The panel included the mayors of Sechelt and Port Coquitlam, who spoke about the uncertainty local governments face when it comes to land use and land ownership.
When they are asked who is ultimately in charge of land use decisions, they say they really don’t know how to answer.
“In Sechelt, I don’t know who’s in charge,” said Sechelt Mayor John Henderson.
Concerns over DRIPA, land claims and recent court decisions affecting private property rights are triggering a backlash. This backlash threatens reconciliation efforts that, heretofore, were widely supported by the public.
These concerns are spilling over into the sphere of land claims and treaty negotiations, and we are now seeing opposition to proposed new treaty agreements that embed the United Declaration on the Rights of Indigenous Peoples Act (UNDRIP).
Eleven former B.C. attorneys general – including former BC Liberal cabinet ministers Geoff Plant and Mike de Jong – recently penned a letter reaffirming support for treaty-making.
Treaties, they say, are “among the strongest and most practical forms of reconciliation available to our province.”
I couldn’t agree more. Modern treaties are the best way of achieving reconciliation.
But the federal and provincial governments now risk losing support for treaty-making in B.C. because some of the new treaties being put forward for ratification include UNDRIP as a guiding principle, and the Canadian public appears to be having some serious buyers’ remorse over UNDRIP and DRIPA.
Legal interpretation and treaty frameworks
Tom Isaac, an expert in Aboriginal law, said he also supports treaty-making, but has concerns when he sees new treaties referencing UNDRIP, as the K’omoks final agreement does.
“I’m pro-treaty,” Isaac said during last week’s panel discussion. “Treaties can create certainty and finality.
“But these treaties that, recently, the current provincial government are promoting are not certain.”
There are concerns that UNDRIP and B.C.’s version of it (DRIPA)
may be inconsistent with other Canadian laws, making it difficult, if not impossible, for lawyers to even interpret DRIPA.
“Lawyers in the room will know this,” Isaac said. “We were directed… to abide by the DRIPA law, that we are to interpret every statute and regulation consistent with under law. I don’t know how to do that.”
Municipal governments are also finding the evolving legal landscape increasingly confusing and uncertain.
“It’s a moving target, in terms of the requirement of the municipality,” said Port Coquitlam mayor Brad West. “When I have municipal staff who phone over to Victoria, depending on who answers the phone, they may get a different answer.
“You may have someone who says that the most mundane of public works activities – like the replacement of a utility or a waterline – requires consultation with the local First Nation, which will then mean that that project takes a lot longer (and) costs more.”
Amending legislation to preserve reconciliation
When DRIPA was enshrined into law, the BC government passed enabling legislation that requires all B.C. laws and statutes to be changed to be consistent with DRIPA.
When the BC Appeals Court interpreted DRIPA as it was written in the Gitxaala case, the implication was that every statutory decision made in B.C. is now vulnerable to a legal challenge, on the basis that the statute the decision was based on is non-conforming to DRIPA.
Realizing the Pandora’s Box that had just been opened, David Eby announced DRIPA would be amended, and then immediately climbed down when he was threatened by the First Nations Leadership Council with “collective resistance from First Nations and allies across the province.”
This has created the perception that the B.C. government is no longer actually in charge – that a democratically elected government is now in a kind of co-governance coalition with First Nations organizations.
“The B.C. government has been moving steadily towards a co-governance model of land disposition and resource management throughout the province, with no proper public mandate, and without any support for such an obviously undemocratic concept in Canadian constitutional law,” said Geoffrey Moyse, a former advisor for the B.C. attorney general’s legal services branch.
If the First Nations Leadership Council wants to avoid a showdown that results in DRIPA being repealed altogether by the voting public, they need to compromise and work with the Eby government on amending DRIPA.
Aaron Pete – chief, podcaster and Peter Allard School of Law graduate – has offered what I think is the most lucid, balanced and pragmatic analysis of the DRIPA dilemma.
His recent monologue on DRIPA should be essential listening for anyone wrestling with this fraught and complex problem.
“I don’t believe keeping DRIPA unchanged is a credible argument,” said Pete, who is chief of the Chawathil First Nation. “But I also do not believe repealing one statute resolves the underlying issue.
“British Columbia should substantially amend or repeal and replace it with clearer domestic law.”
In the coming election campaign, I suspect DRIPA, land claims and reconciliation will be a top campaign issue.
So during this campaign, David Eby needs to be clear with the voting public: Where did his government go wrong with DRIPA and how does he plan to fix it?
Nelson Bennett’s column appears weekly at Resource Works News. Contact him at [email protected].
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