A law can survive bad press, a court defeat, and even an angry Opposition, but only if the governing party itself keeps believing in that same law.
The Declaration on the Rights of Indigenous Peoples Act (DRIPA) has the dubious distinction of not only being run through a gauntlet of horrible press, a combative BC Conservative Opposition, push back from the business community and defiance from Indigenous leaders, it also fractured the solidarity of the NDP government caucus, when more than 10 MLA’s resisted changes to the legislation.
DRIPA is not a statute for reconciliation anymore.
It has evolved into an existential question over the rights and security of private property and the viability of resource development, unleashing “a tidal wave of litigation,” a constitutional law debate, allegations of undemocratic co-governance, and a crisis of legitimacy for B.C. Premier David Eby and his government.
As it currently stands, DRIPA is doomed.
When it first passed in 2019, there was a cloud of ambiguity surrounding it. The proposal was sold to legislators and the public as the province’s reconciliation vehicle, a high-minded framework that would imbue the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) into provincial lawmaking.
Yet Section 3 of DRIPA “mandates” government to align all provincial laws with UNDRIP. According to a B.C. government webpage, nearly 20 laws have undergone “legislative reform” to align them with DRIPA so far, including the Anti-Racism Data Act, purportedly one of the first laws to be “co-developed” with Indigenous people. Presumably, like the DRIPA legislation itself, it was done in “cooperation and collaboration” with the Indigenous leaders (as per UNDRIP), a process some have characterized as co-governing. Which is a very far distance from its sales pitch in 2019 as an “aspirational” document.
For a few short years, the initial framing of DRIPA as a benign “interpretive aide” to advance reconciliation made it possible for government, and even sympathetic members of the Opposition, to claim a shared victory for passing the law. First Nations could celebrate a historic legal commitment, while the NDP could reassure any suspicious or nervous voters or industry figures that there would be no legal disruption to Aboriginal rights and title.
Then the BC Court of Appeal decided that statutes would be read as if the words meant what they said.
Last December, the Gitxaala decision ruled the Mineral Tenure Act did not conform to DRIPA or the Interpretation Act, both of which were introduced by Eby when he was attorney general and essentially instruct all B.C. laws must adhere to the principles of UNDRIP. The ruling gave courts jurisdiction to strike down provincial laws found non-compliant with UNDRIP standards, effective immediately.
One veteran lawyer said the Gixaala ruling transformed DRIPA from a political promise into a living, breathing, potent legal tool. Now every statute touching land, resources, permitting, consultation or title is open to litigation for not conforming to DRIPA.
lf that is not a legal revolution, than it is right next door.
Read the full article at The Northern Beat: DRIPA won’t lead to reconciliation, that’s why it’s doomed.