Reversing course on reconciliation?

As British Columbia’s pushback on the implementation of the Declaration on the Rights of Indigenous Peoples Act intensifies, legal experts say the response is a shocking reversal on reconciliation amid growing resistance to the power of the courts.

In December, the B.C. Court of Appeal ruled 2-1 that the province’s Mineral Tenure Act, which allowed registration of mineral rights without consulting the Gitxaała and Ehattesaht nations, was inconsistent with the law implementing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in the province. 

Within hours, Premier David Eby said the provincial government would amend DRIPA. The province has also filed an appeal to Canada’s Supreme Court.  

Bruce McIvor, a partner with First People’s Law in Vancouver, says the government’s position is weakening trust — both between First Nations and the government, and the public’s trust in the courts.

“It's a bit ironic because [governments] will often tout the rule of law as a fundamental principle that First Nations need to adhere to, and here we have a premier saying, ‘I didn't get the outcome I wanted from the B.C. Court of Appeal, so I'm going to go and change the law.’" 

^{Bruce McIvor}

He says Eby’s criticism of Gitxaala and of Cowichan, the Supreme Court of British Columbia decision on Aboriginal title, is undermining people's confidence in the courts, despite the fact “the courts did exactly what they were called on to do, and made a decision based on very well-established legal principles.”

DRIPA was passed in 2019, making British Columbia the first jurisdiction in Canada to pass legislation to bring the UN declaration into law. It had the full support of the provincial legislature and endorsements from the Mining Association of British Columbia and the British Columbia Chamber of Commerce.

Two years later, federal legislation that closely resembled B.C.’s law was passed. This was seen as a significant step for reconciliation, but advocates say recent moves undermine that progress. 

‘The sky isn’t falling’

Gordon Campbell, the senior barrister at Aubry Campbell MacLean in Alexandria, Ontario, and counsel on Montour — a 2023 case in Quebec Superior Court that was the first to address implementation of UNDRIP  — says he was shocked by B.C.’s response to Gitxaala in part because the Court of Appeal decision isn’t radical. Instead, it affirms that the legislation unanimously adopted in 2019 means something. 

“Gitxaala itself is really [saying] the Act isn’t a piece of fluff,” he says. 

“It is just really another consult…The sky isn't falling.”

Campbell says the political response is also striking, given that legislation implementing UNDRIP is in place at the federal level. 

“The political commitment seemed to be quite sincere, and I'm surprised at the stepping back, given that the consequences to date have not been significant.”

Lisa Fong, counsel for the Gitxaala Nation, says they argued that the Mineral Tenure Act was inconsistent with UNDRIP to compel the government to engage in dialogue with First Nations.  

As the government moves to amend DRIPA, one route could be to remove section 3, which requires the government to take all steps to ensure provincial laws are consistent with UNDRIP.  She says that’s concerning, as it could eliminate a tool for First Nations to enforce accountability. 

“My First Nations clients [have] said to me … ‘how can this happen again’?” Fong says. 

“In their living memory, they were prohibited from hiring lawyers, from raising money to have land claims, and if they were going to access the courts in relation to their lands, they actually had to do it through the Crown.” 

‘A dark time’

Advocates say the premier’s suggestion that reconciliation is “government’s responsibility, not the courts,” harkens back to an era when the Crown held unilateral authority in decision-making, and Indigenous people were denied access to the justice system. 

“It just feels like such a dark time, to be told that reconciliation is this one-way street,” Fong says.

She says the biggest issue on appeal will be the presumption of conformity—the principle that domestic laws be interpreted in a way that aligns with international law whenever possible.

“The courts have been very clear … that the common law presumption of conformity would apply to all laws,” Fong says. 

“That exists throughout Canada; it’s not just British Columbia. That is a very broad issue. So I suppose that could be one reason why (the Supreme Court of Canada) would take it on a leave to appeal because it has that national impact.”

Eby’s office did not respond to a request for comment on the reasons for pursuing an appeal and concerns about the impact on the relationship with First Nations.

Nor, at press time, had he responded to a joint statement signed by more than 100 First Nations and First Nations organizations calling on him to uphold DRIPA.

They say the calls to amend the legalization and appeal court rulings are rooted in fear. The reality is, DRIPA and decisions like Gitxaala are not obstacles; they’re opportunities. 

“They provide a framework to do the necessary work of reconciliation in a way that builds clarity, stability, and shared success,” the statement says.

“British Columbia faces a clear choice about the path we walk together: a path of negotiation, collaboration, and shared prosperity with First Nations and all British Columbians, or a path that takes us backward to a place of uncertainty and conflict that none of us want to revisit.”

Scaling back role of the courts

Merle Alexander, K.C., principal at Miller Titerle + Co, who’s worked extensively on DRIPA implementation, says the province’s decision to appeal was shocking, given that the premier had publicly stated that one was not forthcoming. The move is raising fears that consultations on amendments are happening in bad faith. 

Ultimately, he says the appeal is a high-stakes play by the province, and not just for B.C. If there is a Supreme Court majority decision upholding Gitxaala, it could create interpretational issues for Ottawa’s UNDRIP legislation. 

“For the federal government, that could be highly problematic because they have literally amended nothing.”

^{Merle Alexander}

Either way, Alexander says the most dangerous elements of B.C.’s response are what appear to be the premier’s direction to the attorney general to “scale back” the role of the courts when it comes to Indigenous rights.

"Reconciliation is the business of government-to-government relationships between the provincial government, the federal government and First Nations governments. It is not for the courts to take over,” Eby, a lawyer, told Natural Resources Forum in January.

And yet, much of the existing Aboriginal rights common law exists because First Nations could access the courts to have issues interpreted, Alexander says. Changing how much courts may consider matters related to UNDRIP implementation could limit an entire body of law.

“That’s really the most threatening thing,” he says, suggesting that people willing to accept that approach for Indigenous people need to consider why that is and the fact that it may not stop there.  

“Anytime a law strips an independent judiciary from looking at circumstances (is) in itself a much more fundamental issue.”