A Long Final Debate, But No Amendments to Bill 41
Before passing unanimously, Bill 41 was debated at length over five days in committee. Despite the lengthy debate, the Bill was not amended - the substantive provisions passed as tabled back in October 2019.
With DRIPA as Law, What Can We Expect?
1. Short-Term: No Immediate Changes
A key theme that emerged from the Bill's debate is that the government does not intend for DRIPA to give the UN's Declaration on the Rights of Indigenous Peoples (the "Declaration") legal force and effect, nor is it intended to create new rights beyond what is presently recognized in s. 35 of our Constitution.1 The Minister of Indigenous Relations and Reconciliation reaffirmed that point "almost 20 times during the debate" by MLA Michael de Jong's count.2 This confirms that, in many respects, DRIPA does not immediately change the current landscape of Aboriginal law in BC.
For example, the Minister emphasized that the courts should not use DRIPA to strike down existing BC laws, and that the government does not plan on changing how it prepares and introduces legislation of general application. DRIPA is also not expected to change how the province consults with First Nations, nor how operational decisions are made. This portion of Bill 41's debate illustrates government intentions over the short-term:3
M. de Jong: ... I'm a rancher in the Nicola Valley, and my three-year grazing permit is due to expire next year. I'm applying for a renewal. It's an essential part of my operation. I can't make the ranch work without the advantage of the grazing permit, but it is clearly located in the traditional territories of a number of First Nations.
I'm worried that what has already become a fairly lengthy process, in terms of the time it takes to have the certainty associated with securing that grazing tenure, is about to get even longer. I'm unsure about how the government, in the post–Bill 41 world, is going to take articles like article 32 and alter the process they follow to fulfil the Crown's obligation around consultation and to secure the free, prior and informed consent that will now, apparently, guide those deliberations as well.
What can the minister say today to that rancher who is harbouring some concerns on that front?
Hon. S. Fraser: There won't be any immediate changes as a result of the legislation. The act itself does not change how the province consults with First Nations, nor how operational decisions are made. We will be focusing on the higher-level strategic process that I referred to versus individual permitting processes. That's what's anticipated.
2. Medium-Term: The Action Plan and Decision-Making Agreements
Section 4 of DRIPA states that the government must prepare and implement an action plan to achieve the objectives of the Declaration. While the Act does not provide a fixed timeline for this, we learned through debate that the government does not anticipate tabling the first action plan for some months. However, the Minister clarified "we are talking months, not years" for the action plan.4
As discussed in our prior bulletins in this series, DRIPA empowers the government to enter into decision-making agreements with Indigenous governing bodies. Indigenous nations or groups will self-determine their representation for the purpose of entering into these decision-making agreements. As articulated by the Minister, this could include, but is not limited to, elected leadership, hereditary leadership, a combination of both, or a number of individual nations coming together as a collective.5 It remains to be seen how the government will assess whether a chosen representative speaks for the entire group, especially in cases of internal disputes. However, as emphasized above, these agreements are anticipated to focus on high-level strategic decision-making interests, not individual permitting processes.
3. Long-Term: "Generational Work" to Align BC's Laws
Over the long-term, BC has committed to aligning its laws with the Declaration. Which begs the question: What does the BC government believe requires alignment? At this point, the government's targets for legislative amendment are uncertain, as a complete review of BC's laws has not been completed. That said, changes are anticipated and the debate over Bill 41 provided some insight into the government's current understanding of the requirements under the Declaration. For example, during debate, the Minister stated that:
- Article 28 of the Declaration, which deals with the right to redress, speaks to a collective right to compensation, not an individual right.6
- Article 32 of the Declaration, which provides that states will consult with Indigenous peoples in order to obtain their free, prior and informed consent before approving projects, provides government "an opportunity to involve Indigenous peoples in the process at an even deeper level". The Minister used the forestry sector as an example, providing that "[m]any forest companies investing in the province are doing their work in alignment with the UN declaration already" using a collaborative stewardship framework7 This provides an example of the type of decision-making we could see more of in the future.
- In the context of the modern treaty process, when the government settles a treaty, it is satisfied that the treaty partner has agreed that they have had free, prior and informed consent8
In terms of timeline, the Minister expects that bringing BC's laws into alignment with the Declaration will take "generational work": 9
The priorities and the pace of the work will be set out in the action plan. We didn't prescribe that as such. This work will be expected to take time bringing laws into alignment with the UN declaration. It won't happen overnight. It will be generational work.
Despite recognizing that generational work lays ahead, with DRIPA, the BC government has bound itself at law to "take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration". Future legislative changes, arising from this commitment, will come in collaboration with Indigenous nations, but the government has also emphasized that there will be opportunity for engagement with the business sector, local government and other stakeholders.
As DRIPA comes into force, the government has gone to great pains to say that it will not affect how decisions are made at an operational level in the near term - both in the summaries that they have produced in writing and in answer to questioning on the floor of the legislature and in committee. However, the expectation from Indigenous communities is that this is a historic step that recognizes a right to free, prior, and informed consent. It would be surprising if that expectation was not coupled with an expectation that there would be immediate change to how decisions are made at an operational level. This gap in expectations may be the source of conflict and uncertainty in the near term as the reality of what DRIPA means is dealt with by government's operational decision makers - conflict that may end up in court.
Recently, the federal government also committed to introducing legislation to implement the Declaration in the next year. We will continue to provide updates on the development of that legislation, including whether it mirrors, or departs from, BC's DRIPA.
3 https://www.leg.bc.ca/content/hansard/41st4th/20191125pm-Hansard-n297.pdf at p. 10760-10761.
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