The government of British Columbia may have downplayed or even deliberately lied about the impact of incorporating the United Nations Declaration on the Rights of Indigenous People (UNDRIP) into BC’s legal system, but I suspect even they are suddenly realizing just what a legal disaster they have unleashed on their province (and indirectly, on the rest of Canada):
A map showing the Cowichan title lands outlined in black. These lands were declared subject to Aboriginal title by the BC Supreme Court earlier this year, in accordance with the UNDRIP provisions added to BC law in 2019.
When the B.C. NDP introduced a 2019 act committing the province to the United Nations Declaration on the Rights of Indigenous People (UNDRIP), they very specifically assured critics that it would not be a “veto” over existing laws.
“The UN declaration does not contain the word veto, nor does the legislation contemplate or create a veto”, Scott Fraser, the province’s then Indigenous relations minister, told the B.C. Legislative Assembly.
Fraser explained that it was not “bestowing any new laws”, it would not “create any new rights” and it certainly wouldn’t make B.C. subservient to a UN declaration.
Fraser would even explicitly assure British Columbians that there was no conceivable future in which, say, a private landowner could suddenly see their property declared Aboriginal land.
“We are not creating a bill here that is designed to have our laws struck down,” he said.
That it only took six years for all of these scenarios to take place may explain why there is so much panic in B.C. right now.
The newly appointed head of the B.C. Conservative Party is calling for an emergency Christmas session of the legislature to excise UNDRIP from provincial law, saying it has become an anti-democratic tool.
Even B.C. Premier David Eby — a onetime champion of the legislation — has said that “clearly, amendments are needed”.
And British Columbians, whose support for the UN law was already not great, are growing restless. According to an Angus Reid Institute poll released on Wednesday, Eby ranks as one of the least popular provincial leaders in the country.
What changed was a Dec. 5 B.C. Appeals Court ruling that not only struck down a B.C. law (the Mineral Tenure Act) on the grounds that it violated UNDRIP, but effectively ruled that any law or government action could similarly be overturned if it wasn’t in line with the 32-page UN declaration.
By writing UNDRIP into B.C. law, the province had adopted the Declaration as “the interpretive lens through which B.C. laws must be viewed and the minimum standards against which they should be measured”, read the majority decision.
Although UNDRIP is mostly filled with uncontroversial declarations about languages and traditional medicine, its clauses are pretty uncompromising when it comes to issues of land use or resource development.
“Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”, reads a subsection of Article 26. It also states that Indigenous peoples “own, use, develop and control” any land that they’ve held traditionally.
Eby is saying that the courts took it too far, and that writing UNDRIP into B.C. law was only ever meant as a holistic decision-making guide, rather than a law superceding all others.
As Eby told reporters this week, by signing onto UNDRIP, B.C. wasn’t intending to put courts “in the driver’s seat”.
