The Legacy of Accountability & BC’s UNDRIP Act

Is the new legislation more of the same?

The Legacy of Accountability & BC’s UNDRIP Act

In October of last year, the Minister of Indigenous Relations and Reconciliation, Scott Fraser, introduced the Declaration on the Rights of Indigenous Peoples Act (the “Act”) to the BC legislature as Bill 41. In the Minister’s stated view, the chief purpose of the legislation is to harmonize BC laws with the principles enunciated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which serve “as the framework for reconciliation.” Although receiving royal assent in November, the Act can hardly be considered a movement toward a true reconciliation.

A close and careful reading of the legislation clearly demonstrates its inadequacies as an instrument of change. Most glaringly, section 8 of the Act precludes the application of the BC Offence Act, such that a failure to comply with government obligations does not trigger penalty provisions as a provincial offence. Furthermore, section 4 of the Act contemplates the creation of an “action plan” to facilitate a transition to and recognition of its legislative objectives. Notwithstanding that the creation of an action plan is likely to require a significant amount of time (incurred in the consultation process with interested Indigenous groups), the Act provides little guidance on the implementation of Indigenous rights. More likely than not, the action plan will not be focussed on a timely recognition of these rights.

Under section 1(4), the Act also preserves the “rights recognized and affirmed by section 35 of the Constitution Act, 1982.” This may serve somewhat problematic as a measure for Indigenous rights, as unlike the Act’s predecessor, federal Bill C-262, which had preserved only “existing Aboriginal or treaty rights of the Aboriginal peoples of Canada that are recognized and affirmed in section 35,” the more general language within the provincial legislation may be construed as importing certain Crown rights, such as the right to infringe Aboriginal rights.

Lastly, it should be noted that many of the provisions of the Act contain general and ambiguous language, as is usual for declarations in international law. The direct adoption of this language by a Canadian jurisdiction is unlikely to cause effective change in the existing scheme of Aboriginal rights under section 35. Section 35 has been phrased as broadly as possible, providing no restrictions as to the content of Aboriginal rights, yet has been severely restricted in scope within the Canadian jurisprudence. Indeed, Canadian courts are unlikely to apply a much broader interpretive approach to the general language under the Act. It is only a matter of time before courts correspond many of the existing internal limitations on section 35 rights to the rights under the Act (in addition to the seemingly existing limitation provision within Article 46(1)).

Earlier this year, there was a debate at the Peter A. Allard School of Law featuring notable speakers Dr. Gordon Christie, an Indigenous proponent and law professor at UBC and Thomas Isaac, Chair of the Aboriginal Law Group at Cassels Brock & Blackwell. Although the need for a renewed perspective on reconciliation was largely a point of contention among the speakers, they agreed that the Act is largely insufficient as an instrument of change. In Isaac’s view, nearly all issues respecting Indigenous rights are a product of the fact that industries contemplate their objectives over decades, Indigenous peoples contemplate their objectives over generations, while governments merely think over 4-year cycles.

It remains to be seen in what respect the government will develop an action plan to implement Indigenous rights and the manner in which courts will engage with the rights under the Act. Nevertheless, in consideration of the long-standing legacy between BC, Canada and their Indigenous peoples, one must be careful to expect significant change brought upon as quickly and swiftly as the passing of a single piece of legislation.

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