An Open Letter to Members of the Legislative Assembly
This week, the B.C. NDP government will try to muster support from MLAs for a bill to suspend parts of the Declaration on the Rights of Indigenous Peoples Act (DRIPA or “Declaration Act”) and a related Interpretation Act amendment. Premier Eby has confirmed he intends to introduce legislation to suspend critical provisions of DRIPA despite overwhelming opposition from First Nations, and is seeking to build caucus and cross-party support to do so. Each member is being needlessly forced into a vote by Premier Eby, which will have immediate and lasting consequences for reconciliation and the legal, political and economic stability of this province.
We are writing to urge members to oppose this proposed bill. DRIPA was passed in 2019 with the unanimous support of all MLAs in the legislature. It was a momentous occasion that we all celebrated. It committed the BC Government to work with First Nations to align BC laws with the UN Declaration on the Rights of Indigenous Peoples, an international instrument that affirms the human rights of Indigenous Peoples, including self-determination, free, prior and informed consent, and the stewardship of lands, resources, our territories and our cultures. In passing DRIPA, BC became the first commonwealth jurisdiction to make this commitment in law. Just over five years later, BC seeks to renege on this legislative promise.
Premier Eby has falsely framed his proposed suspension of DRIPA as a necessary and urgent response to legal uncertainty arising from recent court decisions that affirm First Nations’ inherent title and rights in this province. His framing is not only misleading but is also inherently wrong. We are dismayed at the degree to which the court cases and DRIPA are being misrepresented, mischaracterized and conflated as rhetoric and fearmongering. The risk before the legislators and all British Columbians is not created by DRIPA - it is created by the decisions to undermine it through unilateral action.
Attempts to suspend sections of DRIPA and the Interpretation Act to achieve a desired outcome in a court decision is an act of fettering the separation of judicial powers, and an egregious attempt to limit First Nations’ access to the court, reminiscent of the 1927 law that prohibited First Nations from hiring lawyers and accessing the courts. Limiting the role of the courts limits First Nations' access to justice and sets a dangerous precedent that should concern all British Columbians. Canadian courts have always had a role in reconciliation. The courts have been clear – First Nations title and rights in BC are not up for debate. Any attempt to interfere with the courts' role, and First Nations’ access to justice, will be met with collective resistance from First Nations and allies across the province.
We also wish to address Premier Eby’s misrepresentation that the First Nations Leadership Council (FNLC) as a “wall of opposition” and that he will now seek support directly from individual rights and title holders. The Province has held limited sessions directly with First Nation title and rights holders at which those First Nations directly voiced overwhelming opposition to the Province’s proposals to unilaterally amend or suspend DRIPA. The FNLC has echoed this opposition, based on our very clear mandate established through resolutions of First Nations Chiefs and leaders.
Contrary to statements by the Premier that First Nations are “failing to compromise”, First Nation title and rights holders have consistently offered to work with the Province to improve the implementation of DRIPA and this offer remains. However, they have been just as consistent in messaging that there are no circumstances under which a unilateral suspension or repeal of DRIPA and the Interpretation Act are acceptable. First Nations should not be asked by the Crown to compromise their human rights. No other segment of society is asked to put their rights on hold while the government seeks to appeal to the Supreme Court of Canada to undermine those very rights.
First Nations and the FNLC have put forward a number of concrete, constructive solutions to address the Province’s concerns about DRIPA implementation including proposals for a DRIPA Implementation Act, an independent oversight body, a joint Cabinet Committee on DRIPA implementation and a proposed process to identify a workable “off-ramp” to avoid amendments or suspension of DRIPA. Each proposed possible solution was rejected or considered non-workable with Premier Eby declaring that suspension is “non-negotiable.” However, it is First Nations or the FNLC accused of refusing to compromise. The Premier has had every opportunity to work in partnership with First Nations and the FNLC to find a path forward. He has chosen, instead to storm ahead with unilateral action.
Our message to MLAs is simple: if you choose to support efforts to weaken these Acts and our co-developed framework for constitutionally required reconciliation, you are not avoiding legal risk - you are increasing it. First Nations around the province have made their position clear - attempts to unilaterally suspend or repeal DRIPA and the Interpretation Act will invite legal challenge. Those challenges will be grounded in constitutional law and the Province’s own legislated commitments. The courts will be asked to determine not only the substance of the suspension but also the process by which it was imposed. This will result in increased legal uncertainty, significant financial burden to the Province, and further delay to the very economic and regulatory certainty that Premier Eby claims to be protecting.
There remains another path. You can reject the course of colonial unilateral action and choose to uphold human rights and the honour of the Crown, and insist that the Province meet its legal obligations through good-faith negotiations with First Nations to improve the implementation of DRIPA as a key component of our co-developed principled framework for reconciliation. The choice is yours; however, First Nations, the courts, investors - and your constituents - will judge it accordingly.