DRIPA legislation is deeply flawed and has been haphazardly implemented outside the framework of Canadian constitutional law.
Former attorney general Geoff Plant is once again cheerleading the BC NDP government’s failing and divisive “Indigenous rights” agenda, while at the same time reminding us that it is really the courts and not governments that are the final arbiters of the difficult and complex legal, social and political issues associated with “reconciliation.”
Mr. Plant’s support for the present government’s DRIPA-based efforts, as well as, for court-based “reconciliation” is both confusing and frankly ridiculous.
Perhaps his need to try to publicly prop up the Declaration of the Rights of Indigenous Peoples Act and the government’s reconciliation agenda relates to his original support for the “DRIPA project” back in 2019 when he helped lock down all-party support to pass the legislation. And because, seven years later, support for DRIPA is now rightfully failing and the government’s whole UNDRIP-based so-called “reconciliation” initiative is in jeopardy.
Hence, “the drumbeat of complaints from opposition politicians and commentators about the B.C. government’s aboriginal policies,” which Plant dismisses as “a profound misunderstanding of Canadian law.”
But those complaints and criticisms are completely warranted. The government’s DRIPA legislation is deeply flawed and has been haphazardly implemented outside the framework of Canadian constitutional law and without a democratic mandate for the manner of its implementation by this government.
Throughout the OpEd, Plant seems to vacillate between support for and opposition to non-elected judges defining and dictating reconciliation.
“When it comes to deciding what land and resource policies to pursue, whether to develop a mine or build a shopping centre, to regulate forestry practices or establish a park, in any case where the proposed plan may adversely affect aboriginal title, it is ultimately judges – not voters – who have the last word on whether that policy or plan can be implemented,” writes Plant.
Then later, Plant seems incensed at the recent Gitxaala decision of the BC Court of Appeal, which ruled DRIPA was an enforceable law, therefore, the Court said all legislation must be in alignment with the principles of the UN Declaration of Rights of Indigenous Peoples (UNDRIP), as per DRIPA and the Interpretation Act (both introduced by then-attorney general David Eby).
“The work of DRIPA has now been undermined by an entirely unnecessary and unfortunate decision of BC’s Court of Appeal…The court should have declined to entertain the [DRIPA] argument. Its failure to do so was irresponsible…The decision has opened the entire statute book of British Columbia to judicial challenge for compliance with UNDRIP,” wrote Plant.
This raises an obvious question. If Plant and the Eby government perceive UNDRIP to be the holy grail of reconciliation, as they appear to do, and they have embraced the courts having the final say on other aspects of what constitutes appropriate reconciliation, what is so problematic about the courts giving DRIPA and UNDRIP full legal effect?
This is a staggering hypocrisy, bordering on the absurd.
Read the full article at Northern Beat: Government criticism of DRIPA ruling is ‘staggering hypocrisy,’ says Aboriginal law expert