Commitment to make B.C. laws consistent with UN Indigenous rights declaration ‘gigantic’: lawyer

By Ian Burns

Law360 Canada (March 16, 2023, 12:18 PM EDT) -- At the end of 2019, legislators in British Columbia made the monumental decision to start a process which would see its laws align with a United Nations declaration on Indigenous rights, a move which was called a crucial step towards reconciliation. But those involved in the process are saying that journey is far from over and likely be a long one.

Bill 41, the Declaration on the Rights of Indigenous Peoples Act (DRIPA), passed the B.C. legislature in November 2019 on a 82-0 vote, earning unanimous support from the provincial New Democrats, Liberals and Greens. The Act mandates government to bring provincial laws into alignment with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and to develop and implement an action plan to achieve its objectives, in consultation and co-operation with Indigenous Peoples. UNDRIP was passed by the United Nations General Assembly in 2007 which defines the individual and collective rights of Indigenous peoples, including ownership rights to cultural and ceremonial expression, identity, language and other issues.

The Declaration Act Action Plan was released last March and includes 89 cross-government actions in the areas of self-determination and self-government, rights and title, ending anti-Indigenous racism and enhancing social, cultural and economic well-being. But concerns have been raised in some corners that things are not moving along as fast as they can be, and little is being seen in terms of tangible results.

Merle Alexander, Miller Titerle & Co.

Merle Alexander, Miller Titerle & Co.

Merle Alexander of Miller Titerle & Co. was a member of the co-development team for DRIPA as general counsel for the B.C. Assembly of First Nations (BCAFN), and a major component of his practice involves its ongoing legislative implementation — a process he describes as “somewhat overwhelming.”

“There are about 42 pieces of legislation which are being reformed at different stages, and that doesn’t include implementation of the action plan which itself has 89 action items. And then there are just a bunch of other issues that just come up on a regular basis that don’t fit in to one of those very distinct boxes,” he said. “The commitment to make all laws consistent with UNDRIP is a gigantic one which includes the common law and government-to-government agreements, not just the low-hanging fruit of statutes which in and of itself is not a fast-moving process.”

One organization lending its hand to the reconciliation project is the British Columbia Law Institute (BCLI), which has set up the Reconciling Crown Legal Frameworks (RCLF) program to do research which will assist the Crown in implementing the Declaration Act.

BCLI executive director Karen Campbell said the passage of the Act was a “pretty significant signal” that B.C. needs to work to reconcile its relationship with Indigenous peoples — and part of that reconciliation is that Crown laws need to be reviewed and reconsidered.

“But the question is how is that going to happen,” she said. “There are 800 statutes in B.C., alongside about 2,200 regulations — and based on what the Act says, that alignment exercise should be happening across all the statutes in B.C. at some point in time.”

Campbell noted guidance which has been coming out of the B.C. government which says provincial laws are meant to recognize a plural legal framework.

“So, how do you deconstruct Crown laws so that they can be reconstructed in a manner which is consistent with Indigenous legal orders?” she asked. “If there are whole other legal orders out there that courts are meant to be interpreting, but their entire framework for interpreting law is a colonial construct, then where do you include Indigenous laws and governments?”

Val Napoleon, University of Victoria

Val Napoleon, University of Victoria

Val Napoleon, the Law Foundation Chair of Indigenous Justice and Governance at the University of Victoria, noted that there is a lot of work in Indigenous law that goes on behind the scenes and “people don’t necessarily make a big public show of what they are doing.”

“This takes time, and there are quite a few challenges — one of them being that there is no Indigenous legal order completely intact and ready to spring to life. Indigenous law has been undermined and there are gaps with the advent of colonization,” she said. “The work of rebuilding Indigenous law in its full scope and complexity with legal institutions and legal processes is huge, and it takes just as long to do that careful and thoughtful work required for Indigenous law as with any aspect of Canadian law.”

But Alexander said for First Nations people on the ground the process may be frustrating “because they only see outcomes, and not the inner workings of trying to change a statute word for word.” And he noted the DRIPA process is a tectonic shift in the law “because you are almost creating a different constitutional framework.”

"You are saying UNDRIP is a self-determination affirming document, therefore most new laws must confirm to varying degrees of jurisdiction,” he said. “When a First Nation is going through a self-government negotiation, there is a lot of preparation and capacity building that happens alongside that very significant shift and that work is at its infancy. Things are definitely changing, but they are not changing at rapid pace — and partly because of a lot of the procedural implementation is still being worked through.”

A spokesperson for B.C.’s Ministry of Indigenous Relations and Reconciliation said the province is “deeply committed” to advancing reconciliation.

“We are seeing momentum building in the implementation of the Declaration Act. We are fundamentally shifting our approach to how we both develop and implement provincial laws, which is resulting in an increasing number of legislative reforms,” the spokesperson said. “This work is supported by the Indigenous-led Declaration Act Secretariat. Established last year, the Secretariat guides and assists government to ensure our legislation is consistent with the UN Declaration.”

The spokesperson said the process of aligning B.C. laws to the UN declaration will take time “but we are committed to this work and doing it right in consultation and co-operation with Indigenous peoples.”

“We know it’s important to get this right — to show progress that Indigenous Peoples can see, feel and touch, and to demonstrate government’s ongoing commitment to Declaration Act implementation,” the spokesperson said.

For his part, Alexander said it will take decades to make all laws in British Columbia fully consistent with UNDRIP “unless 10 times the resources are poured into it.”

“And there will be stages. The first swing through something like the Forestry Act to make it consistent with UNDRIP will look a lot different than the second or third phases because we will be learning, and First Nations will start gaining jurisdictional experience,” he said. “We have been told for the last 300 years that we exist in a legally plural society, so there are Indigenous laws, municipal laws, provincial and territorial laws and federal laws. The goal is legal pluralism that actually works, where everyone exists with each other’s equality of law in their jurisdiction.”

The provincial spokesperson said B.C. will provide an annual report on the action plan in June.

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