The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has been adopted into law by the provincial government in British Columbia and the federal government. In BC, voters were assured that this was a purely symbolic act to advance reconciliation with First Nations groups in the province. But that was deliberate misdirection and lies:

During the debate on DRIPA [BC’s Declaration on the Rights of Indigenous Peoples Act] in the legislature in late 2019, government ministers of the day waxed lyrical that DRIPA and UNDRIP created no new rights, had no legal force, did not apply to private land, and did not provide a veto. Those assurances were used to justify passing DRIPA, which resulted in the B.C. Opposition unanimously supporting the legislation. It turns out that the government’s assessment and promises were neither correct in substance nor valid legally.

Much has been written lately about DRIPA, some of it wrong. Prior to the B.C. Court of Appeal decision in Gitxaala, some DRIPA defenders insisted it was merely a “process” piece of legislation that bound the government to an arguably undemocratic joint government and Indigenous leadership arrangement, set out in section 3, to evaluate every B.C. statute for conformity with the 46 Articles of UNDRIP and then amend statutes as deemed necessary to create that conformity.

DRIPA itself, though arguably highly undemocratic and perhaps unconstitutional, is not the real problem in this province. The real problem is that DRIPA has been effectively employed as a “smokescreen” by the B.C. NDP and certain of its allies, while the government, secretly and with no explicit public mandate, imposes the Articles of UNDRIP throughout B.C. as a fundamental matter of policy, as though they have the force of law.

Let’s be clear, this is a devious political manoeuvre, much of which is not underpinned in law by DRIPA or, more importantly, by Supreme Court of Canada jurisprudence at all.

Notwithstanding statements made to the legislature in 2019 to get DRIPA passed, the NDP government immediately chose to implement a policy approach to UNDRIP throughout B.C. under which UNDRIP Articles would be applied by the government and the public service as though they were, in fact, the law in this province, notwithstanding the fact that they are inconsistent in many respects with Canadian constitutional law.

In the wake of recent court decisions, there is no indication that the government’s policy approach has changed or that the Premier is thinking about backing away from it, even though there is now much greater public scrutiny of what the government has really been up to since 2019.

The Eby government claims to be upset that UNDRIP is now being applied by the courts as the law in B.C., which it knows will create utter chaos. What has upset it more, however, is that the courts have usurped the NDP government’s desire to quietly and secretly implement UNDRIP everywhere in the province as a matter of policy, a policy that they would like to be viewed as law but without being legally enforceable by judges.

This amounts to a policy of subterfuge by a government that has shown an inclination towards deception on matters concerning First Nations. It appears that a law is not a law unless the B.C. government says it is a law, but some laws, like DRIPA, can be used as a false “front” to allow the covert implementation of a complex UN-based policy that is clearly unfit for the Canadian context, with no one being the wiser.

In the National Post, Warren Mirko explains the murky theory that allows “indigenous ways of knowing” to be taken more seriously than science, history, and legal procedure:

Canada is rapidly abandoning a principle that has shaped western democracies since the Enlightenment: the idea that no person or group has privileged access to sacred or divine knowledge unavailable to everyone else.

Now, this principle is being threatened by Canada’s increasing embrace of “Indigenous Knowledge” — whereby knowledge is treated as collectively owned and restricted by ancestry rather than something open to examination and shared across society.

The governments of British Columbia and Canada — both of which have formally adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) — endorse “Indigenous Knowledge” as inherited, rooted in ancestral relationships to the land, and encompassing spiritual, cultural and metaphysical dimensions passed down through generations.

Remarkably, the defining quality to possess this knowledge is not study, training, time spent on the land, or lived experience by any individual alive today. Instead, it’s lineage itself.

That’s a paradigm shift. When knowledge is said to be possessed by birth rather than learned, its universality is replaced with mysticism and its value diminished.

This comes with real-world consequences: ancestry-based considerations are reshaping how public land and resources are managed on Canadians’ behalf.

In British Columbia, newly proposed changes to hunting and wildlife regulations are described as being informed by “the best available science and Indigenous Knowledge“. In practice, this means “Indigenous Knowledge” is being used to design a regulatory regime that falls almost entirely on non-Indigenous users. That’s because Indigenous harvesting rights are recognized under Section 35 of the Constitution, not bound by the same hunting seasons, bag limits, gear restrictions, or limited-entry systems that apply to the broader public.

The growing influence of this genetically transmitted, ancestry-qualified knowledge extends to matters of public safety and economic security, like nuclear regulation: “Indigenous ways of knowing and the Indigenous cultural context enhance the Canadian Nuclear Safety Commission’s understanding of the potential impacts of nuclear projects and strengthen the rigour of project reviews and regulatory oversight”, says the government of Canada website.

Governments championing the principles of UNDRIP insist that “Indigenous Knowledge” can be combined with “Western” science to produce better public policy. But this is a contradiction. Knowledge cannot at once be exclusive and universal.