B.C. considering changes to weaken DRIPA, shares confidential letter with First Nations leaders

Following two recent court decisions siding with First Nations under British Columbia’s Declaration on the Rights of Indigenous Peoples Act, Premier David Eby is considering amendments that would weaken the legislation.

First Nations leaders have called on Eby to leave the bill alone.

The bill, known as DRIPA, requires B.C. to take “all measures” to align the rights of Indigenous Peoples with existing provincial legislation. Amendments proposed in a confidential letter sent to some First Nations leaders in B.C. on Monday say the government is looking to amend the bill to promise “ongoing processes” to align select legislation with DRIPA.

The provincial Declaration on the Rights of Indigenous Peoples Act, or DRIPA, was passed in 2019.

It’s based on the United Nations Declaration on the Rights of Indigenous Peoples, which requires free, prior and informed consent from Indigenous Peoples on matters affecting their rights, lands, territories and resources.

The federal government has similarly adopted the UN principle and is working toward its implementation, though its view is it does not constitute a veto on development.

Eby told reporters last week his government is trying its best to work with chiefs across the province to address concerns about the court decisions. They both cited DRIPA and sided with First Nations on mining and property rights, which the provincial government has said isn’t the intention of the law.

One found the provincial mineral claims regime is “inconsistent” with DRIPA, and another recognized the Cowichan Tribes’ Aboriginal title on land along the Fraser River, with titles held by Canada and the City of Richmond deemed “defective and invalid.”

In response to the mineral claims case, Eby has said it’s “crucial that it is British Columbians through their elected representatives that remain in control of this process, not the courts.”

“Too much rides on it in terms of our province’s prosperity and certainty going forward.”

If the amendments are passed, it could complicate relationships between Indigenous Peoples and Eby’s government as it looks to get major projects built to boost its economy in the face of trade threats from the United States.

Eby has been facing growing questions over the future of the legislation, and has been criticized over the process in which changes are being discussed.

The proposed changes have remained out of the public eye. The letter sent to First Nations leaders on Monday, which included a link to a document with details of the proposed amendments, said it was “subject to cabinet confidence” and was shared under a confidentiality agreement, which some leaders agreed to in order to allow for consultations.

The Canadian Press has viewed both documents.

Some First Nations leaders have told media they have yet to see the proposed amendments themselves, despite signing that confidentiality agreement.

The province is scheduled to host a briefing about the proposed changes with First Nations leaders on Wednesday, and those leaders are asked to provide feedback by 4 p.m. on Friday. A one-hour meeting for those leaders has also been set for April 1 with Eby, Attorney General Niki Sharma and Indigenous Relations and Reconciliation Minister Spencer Chandra Herbert.

The letter says the government is open to changes and acknowledges the “compressed timelines.”

The government document shows the existing wording of some sections of the law crossed out, with the proposed text of the changes underneath for First Nations leaders to review.

The “Purpose of the Act” section, as currently written in the law, says it is “to affirm the application of the Declaration to the laws of British Columbia.”

The proposed change for that section change instead says the government will “provide for the ongoing processes of the government working, in consultation and co-operation with the Indigenous peoples in British Columbia, towards aligning enactments with the declaration.”

The document also shows the provincial government is looking to replace a clause that says the government “must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration,” and instead says the provincial government will work toward aligning specific laws “identified as priorities.”

It continues that the province “may prepare a new action plan” for implementing DRIPA “at any time.”

First Nations have said they do not support any changes to the legislation, while some B.C. Conservative MLAs have called for the law to be scrapped altogether.

The Union of B.C. Indian Chiefs, which advocates on behalf of more than 100 First Nations in the province, passed a resolution in February calling on the government to publicly commit to keeping the law as is currently written.

The Law Society of British Columbia has decried Eby’s intent to change the legislation in response to court rulings. In a statement released in February, the group said “politicians must take great care when commenting on judicial decisions and must avoid asserting or implying that courts are not properly playing their role.” Doing so, the group said, decreases confidence in the justice system.

“The Law Society urges the B.C. government to reconsider making any proposed legislative changes that would limit access to independent courts,” their statement reads.

—With files from Wolfgang Depner in Victoria and Chuck Chiang in Vancouver

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