Unravelling B.C.’s landmark legislation on Indigenous rights

B.C. has become the first province in Canada to unveil legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 

With a wavering voice, Premier John Horgan spoke to the historic moment as the landmark Bill 41 was introduced in the legislature on Thursday.

“It is truly a great honour to stand in this chamber alongside Indigenous elders, leaders and people to introduce this bill,” the Premier said.

“I’m determined to walk a path of reconciliation.”

“We can have a better future than our past.”

What is UNDRIP and what does it mean for Canada?

Set out in 46 Articles, the declaration calls on state governments to engage with Indigenous nations, communities and cultures in such a way that bolsters the preservation of traditional territories and ways of life.

“It has the capacity to be transformative,” said Merle Alexander, legal counsel for the B.C. Assembly of First Nations and member and hereditary chief of Kitasoo Xai’xais First Nation. “The challenge will be: how do we implement it?”

Alexander, who co-drafted the legislation, said the act is designed to be a framework for reconciliation. 

“The potential of this legislation is to create a new baseline,” Alexander told The Narwhal.

“When you enable government to enter into consent-based agreements, it could radically shift almost all government relationships.” 

A new era of mutual consent

A major question about B.C.’s incorporation of UNDRIP centres around the question of “free, prior and informed consent” and whether or not it amounts to granting Indigenous peoples the power to veto projects that affect traditional territories. 

“Nowhere in the act, nowhere in the declaration, do the words ‘veto’ ever come up. For the first part, it’s fear-mongering,” Alexander said.

Article 32 of UNDRIP grants Indigenous peoples “the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.” 

It also says governments “shall consult and cooperate in good faith” with Indigenous peoples through their own representative institutions, in order to obtain their free and informed consent prior to the approval of “any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

But Alexander said it isn’t an accurate framing of the issue to say UNDRIP will essentially grant nations the power to override government and industry. 

“Veto is about overriding jurisdiction and overruling governments, whereas consent is about agreement and coming together and working through problems and finding solutions,” he said. 

“In some ways consent and veto are polar opposites to each other.” 

Major projects — including the Site C dam, the Trans Mountain pipeline expansion and extensive fracking operations in northeastern B.C. — have been widely criticised for being approved by government without the “free, prior and informed consent” of affected Indigenous communities and nations.

First Nation communities regularly find themselves in the position of waging legal battles against projects after they are approved, when major impacts to land and traditional practices can no longer be prevented.

Blueberry River and the death by a thousand cuts

From the legislature floor, Terry Teegee, regional chief of the B.C. Assembly of First Nations, spoke directly to the claim the new legislation will in effect give Indigenous peoples ‘veto powers.’

“To bring this to a hard point, some people will oppose this law because of their fears of what an era of mutual consent means. There is fear in the idea of sharing power and jurisdiction. I want to say strongly and clearly here this declaration law is not about providing any government with veto rights.”

“Consent is about agreement. It is a process to achieving and maintaining agreement … about respecting our laws as equals and as partners,” Teegee said.

“Consent is the future and most simply put, it’s about coming together as governments, as people seeking to find common ground. Although consultation law has empowered many First Nations in B.C., it has done little to create legal certainty.”

Too often the Crown does not engage in good faith consultation and negotiations and First Nations are turning to the courts to resolve these issues, Teegee said.

“One of the greatest uncertainties for project development in B.C. is not knowing if a project has the consent of affected First Nations. Laws that are co-developed … will deliver economic, legal certainty and predictability in this province.”

Teegee said the province has come a long way in respecting Indigenous self-determination and decision-making in recent years, pointing to very recent but ultimately rejected plan to turn a sacred lake in Tsilhqot’in territory into a tailings pond for a mine. 

The task of adhering to the principles of UNDRIP presents a unique case in provinces such as B.C., where the vast majority of the landscape is considered unceded Indigenous territory, meaning treaties haven’t been signed.

Unceded land in B.C. is often referred to as Crown land, although that designation can be misleading because much of the province falls within traditional territories that have not been ceded but have not been claimed under title rights (as in the case of the Tsilhqot’in Nation).

Map of Canada, showing treaties. Map: Native-land.ca

Major clashes over natural resource projects, such as recent blockades to prevent the construction of the Coastal GasLink pipeline on traditional Wet’suwet’en territory, occur on unceded lands where Indigenous peoples have been guaranteed the right to fish, hunt and practice their traditional ways of life in perpetuity. 

Forest management a natural place to start

Jack Woodward, an Aboriginal rights lawyer who served as legal counsel on the landmark Tsilhqot’in title case, said while Aboriginal rights and treaty rights are governed by the constitution, the province can look for ways to support reconciliation within its own jurisdiction. 

He pointed to the way old-growth forests are being managed by BC Timber Sales, saying it is a matter of policy, not legislation. 

Old-growth forests are a valuable heritage resource for First Nations because they contain the last archaeological record of pre-contact through culturally modified trees, Woodward said. 

“That’s what UNDRIP speaks to and what’s referred to in the proposed legislation but the actual process on the ground is what is going to matter and they’re going to have to give way to make significant change.”

An enormous, freshly fallen western redcedar in a BC Timber Sales-issued cutblock in the Nahmint Valley near Port Alberni. The Nahmint Valley is in traditional territories of the Hupacasath and Tseshaht First Nations. Last year, the Hupacasath sent an open letter calling on the provincial government to halt old-growth logging in the Nahmint and work collaboratively with the band to protect the area’s old growth and, especially, the biggest trees and monumental cedars. Photo: TJ Watt

Alexander said the process of prioritizing where to start on UNDRIP implementation will begin now, but he agrees forestry is a logical place for improvement.

“It does make sense that forestry might be a very tangible and smart place to start,” he said. “The Jenga game has sorta collapsed a bit on forestry and it needs to be re-built.”

“Areas where we’ve seen the greatest successes are where First Nations and industry and environmental groups and government push in a single direction together. That’s going to require dialogue.” 

Woodward also pointed to a directive at the federal level, introduced under Jody Wilson-Raybould as Justice Minister, that instructed federal lawyers to pursue reconciliation in their engagement with Indigenous litigation. 

“That is very progressive and forward-looking,” Woodward said. “And there’s nothing like it at the provincial level so when First Nations find it necessary to go to court they are met with a very hostile response that makes it very time consuming and very expensive.”

“It’s the province’s fault for not managing that interaction in a respectful and conciliatory manner.”

First Nations going to court over Site C dam’s violation of treaty rights

But clashes are also taking place on treaty land in B.C. 

In the province’s northwest, Blueberry River First Nations has launched legal action claiming that the cumulative impacts of resource development on its traditional territory, including fracking, oil and gas development and construction of the Site C dam, mean its members can no longer engage in traditional practices guaranteed to them in Treaty 8. 

West Moberly First Nations is also waiting for a court date for what it calls a “mega-trial” to determine if treaty rights have been unjustifiably infringed by the Site C dam and two other large hydro dams on the Peace River.

Construction at the Site C dam site, July 2018. Photo: Jayce Hawkins / The Narwhal

A judge recently ruled the nation’s treaty rights case must be heard by 2023, prior to the flooding of 128 kilometres of the Peace River and its tributaries, which would destroy traditional hunting and fishing grounds, Indigenous burial sites and areas of special cultural and spiritual significance. 

Article 37 of UNDRIP affirms the right of Indigenous peoples to have their treaties recognized and enforced by government — so, at least theoretically, with new legislation in place projects wouldn’t move ahead without addressing these concerns.  

“The Crown and the Crown corporation would have had it be a requirement to receive consent from Day 1. That would have been a completely different framework,” Alexander said.

“Whether or not they would have ever conceived consent is an open question.” 

While announcing the UNDRIP legislation, Horgan said the environmental assessment process must work in a respectful, collaborative fashion with Indigenous practices and traditional knowledge.

He noted it will be important for governments across Canada to work together to ensure Indigenous rights and values are respected in this process. 

“Jurisdictional differences in this country — it is the strength of our federation, it’s also our greatest weakness.”

How Indigenous-led environmental assessments could ease resource, pipeline gridlock

How does UNDRIP integrate with existing law?

How UNDRIP articles and the declaration’s overarching principles will be integrated into provincial law remains a lingering question.

In a news release, the province states that “over time as laws are modified or built, they will be aligned with the UN Declaration.”

The province also states it will create “new decision-making agreements between the province and Indigenous governments where decisions directly affect Indigenous peoples and mechanisms exist in applicable legislation — with clear processes, administrative fairness and transparency.”

The province also states it will work to recognize Indigenous forms of governance, including collectives and hereditary governments recognized from within Indigenous communities themselves. 

B.C. will produce an “action plan” to meet UNDRIP objectives and will release annual plans on progress made.

It’s been a long time coming … 

The declaration on the rights of Indigenous peoples was adopted by the UN in 2007 after a quarter-century’s in development. Canada was one of four UN member states to vote against the declaration’s ratification.

In 2016, after the Trudeau government was elected, Canada officially removed its objector status to the declaration.

Although the document is a significant step forward in the recognition of Indigenous rights worldwide, it sets only a basic standard when it comes to the affirmation and protection of Indigenous rights. 

Canada’s Truth and Reconciliation Commission called on Canada’s federal, provincial and territorial governments to implement UNDRIP in its calls to action released four years ago.

The introduction of today’s bill is the B.C.’s first formal step in that direction. The bill must go through two more readings in the legislature and be voted on before it becomes law. 

— With files from Emma Gilchrist