Canada: B.C.'s UNDRIP Legislation Facilitates Reconciliation But Leaves Unanswered Questions

On October 24, 2019, the B.C. government introduced legislation which, if adopted, will be known as the Declaration of the Rights of Indigenous Peoples Act (Act). The legislation aims to incorporate the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the laws of British Columbia. The legislation has been received positively by Indigenous Peoples, but concrete actions must follow if government is to meet the high expectations created by the Act. The legislation will also have significant short and long-term impacts on resource development in British Columbia.


The purpose of the Act will be to affirm the application of UNDRIP to the laws of B.C., contribute to its implementation, and support relationships with Indigenous governing bodies. An "Indigenous governing body" is simply defined as "an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982". The province must "consider the diversity of the Indigenous peoples in British Columbia" during implementation of the Act, reflecting the fact that B.C.'s many different Indigenous Peoples have various types of governing structures.

The legislation requires the government, in consultation and cooperation with the Indigenous Peoples of B.C., to "take all measures necessary" to ensure B.C.'s laws are consistent with UNDRIP. The government will also be required to prepare and implement an action plan, and provide an annual report outlining the progress that has been made towards these requirements. In this respect, the legislation is similar to federal legislation introduced under Bill C-262 that was not ultimately passed (see our June 2018 Blakes Bulletin: Bill Backing UNDRIP Heads to Senate, Moves One Step Closer to Becoming Law in Canada).

Finally and perhaps most importantly, the legislation departs from Bill C-262 by providing cabinet with the authority to enter into agreements with Indigenous governing bodies that relate to either or both the joint exercise of statutory decision-making power by the provincial government and an Indigenous governing body; and consent of the Indigenous governing body before the exercise of a statutory power of decision.


The government's news announcements concerning the legislation have promoted improved relationships with Indigenous Peoples and certainty for business. Those twin aims are laudable. However, with such a short Act and no detail about how the government intends to implement the legislation, many questions remain unanswered:

  • A stated purpose of the Act is to affirm the application of UNDRIP to the laws of B.C. The government is also tasked with ensuring B.C. laws are consistent with UNDRIP. Assuming the legislation is adopted, can a B.C. law or statutory decision be legally challenged as inconsistent with UNDRIP? Or do the specific rules setting out how UNDRIP will be implemented require future legislation, such that UNDRIP is only in effect to that extent? The legislation and the government's backgrounders are inconsistent on this point.
  • As for the proposed agreements with Indigenous governing bodies, the definition of Indigenous governing body is very broad. There are no stated criteria for how such a body gains authorization from the Indigenous People it purports to represent. This quandary has resulted in litigation in the past, and can cause difficulty for governments and resource development proponents alike.
  • The government has indicated that it will only enter into agreements with Indigenous governing bodies that have sufficient capacity. Capacity assessment of different bodies may prove difficult in practice, particularly when there are no criteria stated in the legislation.
  • The government has stated that the legislation does not grant Indigenous governing bodies a veto. The question is whether agreements with Indigenous governing bodies will enable those bodies to prevent statutory decisions with which they disagree. If so, how will the government fulfill its role in ensuring the broader public interest is being met in respect of these decisions?
  • Will the government require consent from all interested or affected Indigenous governing bodies? Or from all Indigenous governing bodies with agreements? Or will the government retain the right to approve a project even where Indigenous consent is not obtained, as appears to be the case with the incoming Environmental Assessment Act? (See our November 2018 Blakes Bulletin: Government of British Columbia Introduces Indigenous Consent Requirement for Major Projects).
  • Territorial overlaps among Indigenous Peoples are a longstanding issue. The larger or longer a project, the more challenging it becomes to secure consent from every interested Indigenous governing body. The legislation does not provide means for addressing disagreements among Indigenous groups.
  • Presumably decision-making agreements under the legislation will need to address inter-related rights of other Indigenous Peoples, such as treaty rights and asserted aboriginal rights (see our April 2018 Blakes Bulletin: Modern Treaty Rights Prevail Over Duty to Consult First Nations Asserting Aboriginal Rights).


Recently, B.C. has relied on an increasingly wide variety of government-to-government agreements and processes to regulate development in the province. Experience has been mixed. In aquaculture, for example, new provincial policies provide that industry must now demonstrate that they have support from relevant First Nations in the territories where they operate before being granted new or renewed tenures, effectively operating as a veto. This approach is inconsistent with the government's stated intentions in respect of the Act and its position on major projects like the Site C dam where, after a rigorous assessment process, the broader public interest supported proceeding even in the face of opposition from Indigenous groups. Determining which model will apply to which industry and how remains uncertain.

Indigenous consent for operations in their territories is the goal. An increasing number of businesses and Indigenous groups have met that goal, to their mutual benefit. Many more relationships are being developed and will, with time and good faith effort on all sides, achieve the goal. To the extent that the legislation supports that goal and provides a balanced means to achieve it, it will contribute to reconciliation and broader prosperity. What remains are questions as to how government will balance high expectations and competing interpretations about the meaning of UNDRIP, while continuing to promote a strong investment climate in British Columbia. Time will tell.

For permission to reprint articles, please contact the Blakes Marketing Department.

© 2019 Blake, Cassels & Graydon LLP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions