by Savannah Carr-Wilson
On November 28, 2019, British Columbia (“BC”)’s new Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 (the “Declaration Act”) became law. The Declaration Act requires the provincial government to take all measures necessary to ensure the laws of BC are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), working in consultation and cooperation with Indigenous peoples in BC. This makes BC the first Canadian province or territory to pass legislation to implement UNDRIP.
The Declaration Act represents an important step forward for reconciliation in BC. However, there is a long road ahead. The Declaration Act is framework legislation. By passing the Act, the provincial government laid the groundwork for further steps towards reconciliation. The government must now work in consultation and cooperation with Indigenous peoples to build on this foundation, in order to realize the promise of the Act.
UNDRIP and the development of the Declaration Act
The United Nations Declaration on the Rights of Indigenous Peoples contains 46 articles that state the individual and collective human rights of Indigenous peoples.
The Truth and Reconciliation Commission of Canada (“TRC”) Calls to Action, released in 2015, called on government to adopt and implement UNDRIP as “the framework for reconciliation” (TRC Call to Action #43). In 2016, Canada finally announced its unqualified endorsement of UNDRIP, after nearly a decade of denial. In 2017, the BC government’s mandate letter to Ministers stated that government would be fully adopting and implementing UNDRIP, and called on ministers to move forward on reviewing policies, programs, and legislation to determine how to bring the principles of UNDRIP into action in BC. The Declaration Act was ultimately co-developed by the BC government and First Nations Leadership Council.
Key provisions of the Declaration Act
Under the Declaration Act, the provincial government must work in consultation and cooperation with Indigenous peoples in BC to:
- Take all measures necessary to ensure the laws of BC are consistent with UNDRIP (s 3);
- Prepare and implement an action plan to achieve the objectives of UNDRIP (s 4)
- Report annually on progress made towards implementing the necessary measures and achieving the goals in the action plan (s 5).
The Declaration Act also enables joint decision-making agreements or consent requirement agreements with Indigenous governing bodies (s 6, 7). Indigenous governing bodies are defined as entities authorized to act on behalf of Indigenous peoples holding s. 35 rights (s 1). This framing of “Indigenous governing body” means the Province can enter into agreements with Indigenous governing bodies as recognized by Indigenous peoples – i.e. extending beyond those framed as Indian Act Bands or incorporated organizations like societies.
Fulfilling the promise of the Declaration Act
The Declaration Act presents a significant opportunity for the Province to align its legislation, policy, and practice with the minimum human rights of Indigenous peoples in BC as expressed in UNDRIP.
However, the Act is framework legislation. It establishes a path forward for further steps towards reconciliation, but much work lies ahead to realize its promise. For example, government must now work with Indigenous peoples in BC to determine what measures are necessary to ensure provincial law is consistent with UNDRIP, which existing laws to start with, and how to ensure the consistency of new laws created moving forward. Government must also work in consultation and cooperation with Indigenous peoples in BC to develop the action plan for achieving the objectives of UNDRIP. This will require firm and continuing commitment on the part of government, and require ensuring that Indigenous peoples in BC have adequate resources and capacity to engage in this significant work.