Canada: BC Proposes Extensive Changes In Draft Action Plan To Implement UNDRIP

The BC government recently released a draft action plan to support the implementation of the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP") in the province.  The action plan, which was developed pursuant to BC's Declaration on the Rights of Indigenous Peoples Act (the "Declaration Act"), identifies 79 proposed actions that the provincial government will take to achieve the objectives of UNDRIP in cooperation with Indigenous peoples over the next five years. The Province is currently seeking input on the plan and the deadline for submissions is July 31, 2021.

 The Draft Action Plan proposes a number of potentially significant new measures although these initiatives are described at a high-level and open to interpretation in terms of the precise magnitude of the potential changes.  Some of the measures include:

• a new framework for resource revenue sharing and other fiscal mechanisms to support Indigenous peoples;
• the negotiation of joint-decision making agreements and agreements in which consent from Indigenous governing bodies will be required before the BC government exercises a statutory decision-making power;
• enhanced treaty implementation infrastructure and education of public servants about treaty rights and obligations;
• reviews of various policies and programs relating to the stewardship of the environment, land and resources;
• establishing targets for Indigenous representation in the public sector and combatting racism and systemic discrimination in key areas including policing and health care;
• supporting the revitalization of Indigenous languages and the protection of Indigenous cultural sites;
• establishing economic metrics to help evaluate progress as reconciliation is advanced; and
• establishing a dedicated secretariat to coordinate the Province's reconciliation and UNDRIP compliance efforts and a new institution to provide support to First Nations in their work of nation and governance rebuilding and resolution of overlapping claims.

A more detailed summary of the Draft Action Plan is set out below.  There are a number of measures within the Draft Action Plan that will impact resource and infrastructure development in BC, including the negotiation of joint-decision making agreements and agreements requiring consent from Indigenous governing bodies.  These agreements are expressly contemplated in the Declaration Act but go beyond requirements under the duty to consult and accommodate. The Draft Action Plan does not provide any further insight on the circumstances and frequency in which the BC government will enter into such agreements. This issue will likely be closely watched by Indigenous nations and groups as well as industry and will be a significant challenge for the BC government to navigate given that most government decisions in BC have the potential to impact multiple Indigenous nations and groups that may have competing interests.

Background on UNDRIP Implementation in BC

 UNDRIP is a UN General Assembly resolution that was passed in 2007.  It contains 46 articles that set out a broad range of collective and individual rights of Indigenous peoples.  Canada initially opposed the Declaration (along with Australia, New Zealand, and the United States) but later issued a statement of qualified support in 2010 and a statement of unqualified support in 2016.  Canada's initial concerns with the Declaration primarily related to the provisions about obtaining the free, prior, and informed consent of Indigenous peoples in various circumstances including any developments in traditional territories, and specifically whether this could be interpreted as a veto in decision-making.

 The Province of BC announced it would implement UNDRIP in 2017 and the BC legislature unanimously passed the Declaration Act in November 2019 which provides a framework to implement UNDRIP over time in the Province. The Declaration Act requires the Government of BC to:

• ensure that BC laws are consistent with UNDRIP;
• develop and implement an Action Plan to achieve the objectives of UNDRIP in consultation with Indigenous peoples; and
• report annually on its progress to align the laws of BC with UNDRIP and achieve the goals of the Action Plan.

The Declaration Act also enables the BC government to negotiate and enter into agreements with Indigenous governing bodies relating to the joint exercise of a statutory power of decision or to require the consent of the Indigenous governing body before the exercise of a statutory power of decision.  The BC government has stated that the Declaration Act is not intended to immediately affect or change existing laws but intended to be forward looking, with implementation over time as laws are introduced and amended in consultation with Indigenous peoples and relevant stakeholders.

BC was the first jurisdiction in Canada to pass legislation relating to the implementation of UNDRIP.  The federal government recently passed similar framework legislation but it does not include provisions relating to decision-making agreements.  The federal United Nations Declaration on the Rights of Indigenous Peoples Act received Royal Assent on June 21, 2021.

In releasing the Draft Action Plan, Murray Rankin, BC's Minister of Indigenous Relations, expressed his hope that the Action Plan "demonstrate[s] our government's commitment to pursuing true and meaningful reconciliation". The Draft Action Plan is the product of one year of work between the Government of BC and Indigenous peoples to identify priorities and "establish new foundations of government that reflect the human rights of Indigenous peoples".

The Draft Action Plan recognizes UNDRIP as the "universal framework of minimum standards for the survival, dignity and well-being of Indigenous peoples" which "elaborates on existing human rights standards" for Indigenous peoples in some circumstances.

The Draft Action Plan is informed by a number of principles, including being premised on a distinctions-based approach (reflecting the distinctiveness of First Nations, Inuit, and Métis and their respective rights and interests); legal plurality (recognizing the multitude of legal orders including Indigenous laws); enabling (supporting government-to-government relationships between Indigenous peoples and the province); and impactful (making tangible improvements to Indigenous peoples' social, physical, cultural, and economic wellbeing).

The Draft Action Plan details 79 actions to be undertaken, which are divided into four themes:

1. Self-determination and inherent right of self-government;
2. Title and rights of Indigenous peoples;
3. Ending Indigenous-specific racism and discrimination; and
4. Social, cultural, and economic wellbeing.

Each theme has overarching goals with specific measures.  Set out below is a summary of the goals and some of the key measures.

1. Self-determination and inherent right to self-government

The goal of the proposed measures in this area is to ensure "Indigenous peoples exercise and have full enjoyment of their rights to self-determination and self-government, including developing, maintaining and implementing their own institutions, laws, governing bodies, and political, economic, and social structures related to Indigenous communities".  BC has proposed a number of actions in this area including but not limited to:

• Establishing a new institution in partnership with the Government of Canada that provides supports to First Nations on nation and governance rebuilding and boundary resolution in accordance with First Nations laws, customs and traditions;
• Co-developing long-term agreements with Indigenous groups that support reconciliation, self-determination, decision making, and economic independence - and shifting away from short-term transactional arrangements;
• Utilizing sections 6 and 7 of the Declaration Act (joint decision making and consent agreements) to complete government-to-government agreements that recognize Indigenous self-government and self-determination;
• Co-developing new distinctions-based fiscal relationships that support the operation of Indigenous governments;
• Co-developing new distinctions-based policy frameworks for resource revenue-sharing and other fiscal mechanisms;
• Enhancing treaty implementation infrastructure for effective and fully resourced implementation of treaty responsibilities, including a comprehensive approach to educating public servants about treaty rights and obligations; and
• Prioritizing the implementation of a First Nations Justice Strategy and Métis Justice Strategy to reduce the substantial overrepresentation of Indigenous peoples in the justice system and enable the restoration of justice systems and institutions.

These measures could constitute a significant shift in the Province's approach to dealing with Indigenous peoples and the resources available to Indigenous governments to support self-government but there is insufficient specifics to assess the magnitude and effectiveness of the potential changes.  For instance, there is no indication of how specifically the province may change its approach to resource revenue sharing and how frequently and in what circumstances the BC government will enter into joint decision-making and consent agreements.  The Plan also does not discuss how Indigenous laws and customs will be taken into account in provincial decision-making.

The treaty implementation infrastructure commitment will likely be given even more focus in light of the recent decision in the BC Supreme Court which concluded that the BC government had infringed the treaty rights of the Blueberry River First Nation through the cumulative impacts of provincially authorized industrial development in their traditional territory.  This decision, which is summarized and discussed here, was very critical of the way in which the BC government considers (or fails to consider) cumulative impacts to treaty rights in various regulatory frameworks.

2. Title and rights of Indigenous peoples

The goal of the proposed measures in this area is to ensure "Indigenous peoples exercise and have full enjoyment of their rights, including the rights of First Nations to own, use, develop and control lands and resources within  their territories in BC".

The Draft Action Plan indicates that the Province recognizes "the need to shift from patterns of litigation and expensive and slow negotiations about title and rights to cooperative implementation through effective government-to-government relationships".  The Province has proposed several actions in this area including but not limited to:

• Creating a secretariat dedicated to the province's reconciliation work and to ensuring that new legislation and policies are consistent with the Declaration Act;
• Finalizing the Draft Principles that Guide the Province of British Columbia's Relationship with Indigenous Peoples;
• Providing guidelines to legal counsel of the Ministry of the Attorney General on conduct in civil litigation concerning the rights of Indigenous peoples;
• Negotiating joint decision-making and consent agreements, and creating the legislative amendments required to allow these agreements;
• Co-developing mechanisms to ensure that the minimum standards of UNDRIP are applied in the implementation of treaties and other agreements with Indigenous governments;
• Co-developing strategic policies and programs to ensure collaboration on stewardship of land, resources, and the environment;
• Engaging with First Nations on sustainable management of water including the development of a Watershed Security Strategy and associated Watershed Security Fund; and
• Engaging with Indigenous partners on conservation and biodiversity (including protection of species at risk) and reforming the Province's forestry policy to ensure the protection of the environment and shared prosperity.

It is unclear what the division of responsibilities will be between the new proposed secretariat and the existing Ministry of Indigenous Relations and Reconciliation, which currently has responsibility for the Province's reconciliation efforts. There are notably no action items relating to expediting the BC treaty process and the plan appears to be focused on other arrangements and the implementation of existing treaties.  There are also no measures that are specifically focused on the resolution of Aboriginal title claims and no details on what new measures (aside from potential decision-making agreements) may be introduced in response to the articles in UNDRIP that deal with free, prior, and informed consent.  The issue of cumulative impacts on Aboriginal and treaty rights is also not addressed although we anticipate this issue will be addressed in some way in the finalized plan in light of the recent decision by the BC Supreme Court in Blueberry River.

3. Ending Indigenous-specific racism and discrimination

The goal of the proposed measures in this area is to ensure "Indigenous peoples fully enjoy, express and exercise their rights without interpersonal, systemic and institutional interference, oppression or other limitations associated with Indigenous-specific racism and discrimination." The Province has proposed several actions in this area including but not limited to:

• Providing essential training to the public service, public institutions, and corporations to understand the rights and history of Indigenous peoples, UNDRIP, treaties, and Indigenous specific racism;
• Establishing targets for Indigenous representation in the public sector, including at the senior levels;
• Developing and implementing an anti-Indigenous racism strategy in the K-12 system and conducting an external review of Indigenous-specific racism and discrimination in the provincial public education system and developing a strategy to address its findings;
• Introducing anti-racism legislation that addresses Indigenous racism;
• Finalizing and implementing the Province's plan to address the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls; and
• Developing and implementing reforms to address concerns about systemic biases and racism in policing and the health-care system.
  
  4. Social, cultural, and economic well-being

The goal of the proposed measures in this area is to ensure "Indigenous peoples in BC fully enjoy and exercise their distinct rights to maintain, control, develop, protect and transmit their cultural heritage, traditional knowledge, languages, food systems, sciences and technologies, which are supported by initiatives that promote connection, development, access fully enjoy, express and exercise their rights without interpersonal, systemic and institutional interference, oppression or other limitations associated with Indigenous-specific racism and discrimination."

The Draft Action Plan has proposed several actions in this area including but not limited to:

• Establishing a collaborative approach to partnerships with the Métis Nation of BC respecting Métis self-determination, and establishing flexible and sustainable funding;
• Co-developing a BC specific fiscal framework to support Indigenous jurisdiction over child and family services and continue efforts to reduce the number of Indigenous youth in care;
• Developing a strategy for the preservation of revitalization of Indigenous languages in BC and engaging with First Nations to ensure the protection of Indigenous heritage sites and objects, including an enhanced role for First Nations in decision-making;
• Developing economic metrics to evaluate progress on reconciliation;
• Engaging First Nations to identify and support clean energy opportunities connected to Clean BC, the Comprehensive Review of BC Hydro, and the BC Utilities Commission Inquiry on Regulation of Indigenous Utilities;
• Engaging with Indigenous peoples on applicable aspects of CleanBC, including the Climate Preparedness and Adaptation Strategy;
• Ensuring every First Nations community in BC has high-speed internet services; and
• Advancing a collaborative approach to cannabis-related governance and jurisdiction with First Nations.

The Government of BC is now seeking feedback from Indigenous peoples until July 31, 2021, to finalize the Action Plan and inform the provincial government's work on reconciliation over the next five years. Once finalized, BC ministries will continue to work with Indigenous peoples on implementing the Action Plan. BC ministries are expected to oversee this work, monitor, and report on progress, including in the annual report required by the Declaration Act.  It is expected that the Action Plan will be reviewed within five years and a new plan adopted at that time.

The federal government is now embarking on a similar exercise and has until June 21, 2023 to prepare their action plan. We will continue to monitor and report on the BC and federal government's UNDRIP implementation efforts.

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