A current Indigenous rights controversy in British Columbia has much larger national implications than anyone is discussing. That’s because of significant parallels between B.C. legislation and federal legislation on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Those interested in national infrastructure projects, or even just federal law generally, need to wake up.
The two laws have both parallels and differences, and that matters. But it matters less than you might think. To understand this, we need to look carefully at what is going on.
The B.C. controversy
B.C. is politically ablaze with discussion over what to do about its Declaration on the Rights of Indigenous Peoples Act (DRIPA), a law adopted in 2019 to work toward implementing UNDRIP in the province. It’s such a major topic of discussion that the acronym for the legislation, DRIPA, regularly features across all media.
This heightened attention is because of a December court decision, Gitxaala v. British Columbia (Chief Gold Commissioner), that has led the premier of the same party that adopted the DRIPA legislation to now say it urgently needs to be amended. At the same time, the main opposition party argues that it needs to be repealed. The same positions apply to a related section of the Interpretation Act, which B.C. amended in 2021 to say that courts must interpret B.C. legislation “as being consistent with” UNDRIP.
The Gitxaala decision saw the British Columbia Court of Appeal conclude that DRIPA and the Interpretation Act together require the courts to interpret B.C. laws to align with UNDRIP when they can, and to issue declarations concerning B.C. laws that are outright inconsistent with UNDRIP.
In essence, the B.C. legislation has now been interpreted as subjecting all other B.C. laws to UNDRIP-based analysis in the courts, with immediate effect.
Not just a provincial issue
While it has to date received much less fanfare, the federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA) was adopted by the Liberals in 2021, about 18 months after B.C. adopted DRIPA.1Not to be confused, UNDRIP refers to the UN declaration, DRIPA refers to the provincial legislation in B.C., and UNDRIPA refers to the federal legislation
That has federal Justice Department lawyers now monitoring the situation.
They better be.
The federal UNDRIPA and the B.C. DRIPA share three core elements. First, they both have purpose clauses that refer to the legislation as having a purpose of recognizing UNDRIP as an international human rights instrument with application in Canadian law. A purpose clause normally does not have direct legal effect, but there is parallel wording in the laws that courts may take up in unanticipated ways.
Second, they commit their respective jurisdictions to the development of action plans to achieve the objectives of the UNDRIP. B.C. adopted a 2022–2027 action plan, and the federal government adopted a 2023–2028 action plan. Both imply changes across various areas of Indigenous policy and warrant attention by anyone interested in this space. They warrant attention, especially because we could foresee the possibility of future legal challenges if there is insufficient progress on the action plans. But set aside that issue, and there are still big legal issues ahead.
The third parallel is that both laws commit governments to strong commitments to working to align their laws with UNDRIP. The language requires that they work “in consultation and cooperation with Indigenous peoples,” that they “take all measures necessary” (a very strong requirement at law), and that they “ensure” that their laws are “consistent with” UNDRIP.
That commitment in the B.C. statute helped the Gitxaala court to reach the conclusion that it could consider laws and issue declarations of inconsistency with UNDRIP. On the same language in the statute, a court could easily reach the same conclusion at the federal level.
Major ramifications
There has been a significant Federal Court decision about the federal statute, but it doesn’t address this issue, and the coming appeal court decision on it is thus unlikely to do so either. In Kebaowek v. Canadian Nuclear Laboratories, a trial judge of the Federal Court held that the federal law should lead to a reinterpretation of Canada’s rules on the duty to consult, reorienting them toward consent. That may or may not hold up after an appeal heard in October. But the Federal Court of Appeal may have no reason to comment on the issue referenced in Gitxaala.
Right now, the B.C. government is attempting to appeal the Gitxaala decision to the Supreme Court of Canada, while also simultaneously talking about amending the statute with urgency, but also now taking a six-month pause to negotiate with B.C. First Nations about these amendments.
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Although the federal government never changed the federal Interpretation Act along the lines of the B.C. amendment to its own Interpretation Act, the parallel in the UNDRIP statutes themselves raises real possibilities that court actions could develop on the obligations arising from the federal UNDRIPA itself.
There could, then, be additional legal challenges for national infrastructure projects being pursued by the federal government. We are now in a moment where various Indigenous rights questions are in major interactions with projects designed to bolster the national economic and strategic position amid complex international geopolitics.
On some possible legal conclusions that could come from the courts, there are very tough conversations ahead surrounding these extremely complex issues. It’s not clear that anybody is ready for them.
Dwight Newman, KC, FRSC is Professor of Law and Tier 1 Canada Research Chair in Rights, Communities, and Constitutional Law at the…
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Canadians need to be aware of the potential national implications of recent Indigenous rights disputes in British Columbia involving the province’s Declaration on the Rights of Indigenous Peoples Act (DRIPA), given the parallels to the federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA). These could lead to similar legal challenges at the federal level, particularly concerning national infrastructure projects. The core elements shared by both laws, including purpose clauses, action plan commitments, and obligations to align laws with UNDRIP, are highlighted as potential sources of future legal scrutiny. These legal challenges could significantly impact national economic and strategic initiatives, requiring complex conversations and potentially impacting various Indigenous policy areas.