Robin Junger: B.C.’s new UNDRIP act — more questions than answers

This article is an opinion piece written by Robin Junger for the Vancouver Sun.

On Nov. 26, BC enacted the Declaration on the Rights of Indigenous Peoples Act — the first jurisdiction in Canada to do so.

Much of the debate has focused on high-level statements of principle that are not controversial. Principles related to reconciliation, the need to work together, the need to narrow the socioeconomic gap between Indigenous and non-Indigenous Canadians. Described in such terms, how could anybody reasonably be concerned about the legislation?

Unfortunately, it is not so simple.

If one actually looks at the act and the related language of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), things quickly become more complicated. Not just from a legal perspective, but because it will likely be impossible for government to live up to the expectations that Indigenous groups will now reasonably hold, without fundamentally affecting the rights and interests of third parties.

Section 3 of the act states “the government must take all measures necessary to ensure the laws of British Columbia are consistent with the declaration.” This will require government to review all kinds of legislation, such as the Mineral Tenure Act, the Forest Act, and the Petroleum and Natural Gas Act, which give permit holders the right to extract minerals, timber, oil and natural gas.

Will these laws need to be fundamentally changed to ensure they “are consistent with the declaration”?

Article 26 of UNDRIP states:

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use …

If they must be changed, what will the changes mean for third parties? Unlike the Supreme Court of Canada’s ruling on the duty to consult, UNDRIP does not say Indigenous rights must be reasonably balanced with non-Aboriginal interests. It merely says that Indigenous rights “shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations” and “strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others” (article 46).

Section 7 of the act gives government the power to enter into agreements with “Indigenous governing bodies” to jointly exercise decision-making powers under any provincial law, or to require Indigenous consent before a decision can be issued by government.

When does government expect to enter into these agreements, and what will they cover? How exactly will joint decision-making work? What if the provincial official and the Indigenous governing body can’t agree?

The government has suggested that further legislative amendments will be required to implement these agreements, but the act doesn’t say that, and in any case who knows what further legislation will say.

There are other questions that may be especially concerning for Indigenous groups. If a First Nation now becomes a statutory decision maker under provincial law, will anti-corruption laws prevent it from receiving financial benefits from project developers (a common practice now)? Will it be required to consult other Indigenous groups, given the Supreme Court of Canada’s repeated directions regarding the duty to consult Aboriginal groups when statutory decisions are made that could affect them?

There are also serious questions as to whether this legislation is within the constitutional authority of the province, whether the government can bind future governments by promising to amend laws in future in a certain way and how it may conflict with the Supreme Court of Canada’s decisions regarding constitutionally protected Aboriginal rights.

There is a reason that the words truth and reconciliation are so frequently used together. It is because reconciliation requires tackling difficult issues in a transparent way. Unfortunately, this act falls short on this count, and it is likely that the only real winners will be the lawyers called upon to argue and litigate over this legislation for years to come.

Robin Junger is partner with McMillan LLP. He previously served as B.C.’s deputy minister of energy, mines and petroleum resources, head of the B.C. Environmental Assessment Office, and a provincial chief treaty negotiator.


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IMAGE: Cheryl Casimer speaks to the media after Premier John Horgan announced Indigenous human rights will be recognized in B.C. with new legislation. CHAD HIPOLITO / THE CANADIAN PRESS