BC is both amending a 2019 Indigenous rights law and appealing a related ruling to the SCC
In the weeks since the British Columbia government began pushing back against a landmark court ruling that confirmed that courts have the power to decide whether BC laws align with the United Nations Declaration on the Rights of Indigenous Peoples, the government has faced growing criticism from members of the legal community, who argue that BC’s efforts threaten the courts’ independence, hurt advances made towards reconciliation, and will stymie economic growth.
BC has asked the Supreme Court of Canada to review the decision in Gitxaala v. British Columbia. It is also in the process of amending the Declaration on the Rights of Indigenous Peoples Act, or DRIPA, to strip back the power that courts have to shape BC’s reconciliation efforts.
Enacted in 2019, DRIPA serves as BC’s framework for reconciliation and requires the province to align its laws with the UN declaration.
These simultaneous efforts by BC to challenge the court ruling are “completely riddled with inconsistencies,” says Merle Alexander, a principal at MillerTiterle + Company who was part of the team that developed DRIPA. He pointed to BC Premier David Eby’s characterization of the court decision as “dramatic, overreaching, and unhelpful” in December.
The government’s proposed DRIPA amendments to reduce the scope of the courts’ jurisdiction could also be interpreted as an overreach by the legislature, he suggests.
“When you start trying to restrict the role of the judiciary, then that starts blurring the lines of what the role of the legislature is,” Alexander says. “They’re drifting into each other’s lanes.”
Jesse McCormick, senior counsel at Pape Salter Teillet LLP, who helped develop the federal counterpart to DRIPA, says the government’s multiple challenges to the court ruling signal that it’s stepping back from commitments it’s made towards reconciliation. “That’s a very worrisome trend for First Nations, but also has the potential to impair the economic development of the province,” McCormick says.
The courts can play a “very powerful and effective role” in clarifying whether government actions are consistent with DRIPA,” McCormick says, adding that this clarity can help guide corporate, government, and Indigenous conduct. If courts lose their authority to adjudicate these issues, Indigenous parties may feel pushed instead to pursue litigation under s. 35 of the Constitution Act, 1982, which requires the Crown to consult with Indigenous groups in matters that could impact treaty rights.
This would undermine “the clarity necessary to build strong relationships that can ultimately help to advance major project development and natural resource development,” McCormick adds.
The Law Society of BC, the Canadian Bar Association’s BC branch, and the Trial Lawyers’ Association of BC are among the organizations that have also criticized the government’s response to the Gitxaala ruling.
The integrity of “the entire justice system relies on a strong democracy and the independence of the judiciary from government,” LSBC President Thomas Spraggs told Canadian Lawyer. “We feel that what the government is proposing to do – trying to amend legislation in a way that would limit the court’s ability to do its job, which is to interpret legislation – is problematic. That’s why we’re speaking out on it.”
The BC Court of Appeal issued its Gitxaala decision in December. The ruling found that the province’s mineral claims regime, which allowed individuals or companies to acquire the right to exploit mineral resources in First Nations’ territories without the nations’ permission, was incompatible with DRIPA.
More broadly, the BCCA said the courts have the authority to rule on whether BC laws align with the UN declaration. The appellate court also outlined several types of questions related to s. 3 of DRIPA – which requires the Crown to consult and cooperate with Indigenous peoples to resolve inconsistencies between BC laws and the UN declaration – that the courts are empowered to review. These include whether there is an inconsistency between a BC law and the UN declaration, whether the inconsistency must be addressed by the Crown taking measures, the adequacy of the consultation process, and more.
The ruling came months after the BC Supreme Court issued another landmark ruling in Cowichan Tribes v. Canada, which held that the Cowichan Nation holds Aboriginal title to lands in Richmond, BC.
In its bid to appeal the Gitxaala ruling to the Supreme Court, the provincial government argued that DRIPA does not give courts the authority to determine whether BC laws align with the UN declaration. According to the government, the majority ruling in Gitxaala increases the potential for lawsuits when DRIPA is supposed to be “a transformative project of legislative reconciliation intended to be defined by the Crown and Indigenous peoples working in consultation and cooperation.”
Since Eby announced in January that the government intends to amend DRIPA to scale back the courts’ powers, the government has reached out to First Nations across the province to ask whether they want details on the proposed legislative changes, Alexander says. Those details are not yet public, and those who agreed to receive them are subject to non-disclosure agreements.
Alexander says BC’s attorney general met with those who had access to the details this week to get feedback. The lawyer, who was present at the meeting, also attended another meeting between First Nations that did not involve the government.
“I think it’s fair to say that right now, there appears to be unanimous opposition,” he says. “There’s not been any First Nation that’s spoken in favour of the amendments.”
On Monday, more than 100 BC First Nations issued a joint statement criticizing BC’s response to the Gitxaala ruling.
These efforts “suggest that the framework we have built together is the problem, when in fact it has been part of the solution,” the statement said. “These actions would not create certainty – they would slow progress, increase litigation, and grind projects to a halt as First Nations are once again forced to defend our rights and interests through the courts.”
McCormick says frameworks like DRIPA represented a step forward for Indigenous rights, but also brought certainty to project developments in Canada. BC’s move to scale back the courts’ power is a step backward, he argues.
While the government has the right to appeal court decisions, the fact that its appeal is coinciding with legislative amendments “reflects a broader turn in policy on the part of the province,” he says, referencing the Conservative Party of BC’s push to repeal DRIPA.
Eby’s office did not respond to a request for comment.
