DRIPA’s Deadlock. ‘We Will Not Back Down’

By Andrew MacLeod

First Nations vow to fight the BC NDP in a showdown that could topple the government.

First Nations leaders are condemning Premier David Eby’s plan to suspend parts of the Declaration on the Rights of Indigenous Peoples Act, or DRIPA, as a step backward that will increase uncertainty for all British Columbians and create political problems for the NDP.

“To say we are frustrated or angry would be an understatement,” said Robert Phillips, First Nations Summit leader, at a Friday news conference. “This is a historical moment for First Nations and we will not back down.”

Eby has said suspending sections of DRIPA before the legislature breaks for the summer is necessary because of litigation risks the province faces.

Huy’wu’qw Shana Thomas, Lyackson Hereditary Chief and a member of the First Nations Summit Task Group, accused the premier of fearmongering and making unilateral decisions.

“We suggest that it is in the best interest of all British Columbians to ensure that reconciliation with the inherent rights and title of First Nations people is reconciled with the assertion of Crown sovereignty,” Thomas said. “That is something that is the unfinished business of Confederation in the province of British Columbia.”

Kúkwpi7 Rhonda Phillips from the Xatśūll First Nation said DRIPA was meant to be a commitment to shared decision-making and it is significant that the government is backing away from that.

Reconciliation can’t be based on unilateral decisions or paused when it becomes inconvenient, she said, adding that First Nations support development when it’s done the right way. “Quit working around us. We are here to work with you.”

Otis Guichon, Tribal Chief of the Tŝilhqot’in National Government and Nits’ilʔin of the Tŝideldel First Nation, said DRIPA is a necessary acknowledgment of Indigenous Peoples’ human rights and that suspending it feels like a betrayal.

“Our human rights are not a threat to this province,” he said. “It is the ongoing denial of Indigenous rights that is the biggest threat to this province.”

When the B.C. government passed DRIPA unanimously and with celebration in 2019, the province became the first to commit to aligning its laws with the 46 articles of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.

Eby, who was attorney general when DRIPA passed, says the need to pause sections of the act arose from a December B.C. Court of Appeal decision in the Gitxaala case about mining claims.

In a 2-1 decision, the three Appeal Court justices overturned a B.C. Supreme Court decision and ruled the province had incorporated UNDRIP into its laws through DRIPA and that the province’s mineral tenure system, which allows claims to be staked online, was inconsistent with UNDRIP.

The lower court had already found that the system breached the Crown’s duty to consult under the Canadian Constitution and needed to be modernized to allow for consultation with Indigenous nations.

The temporary hold on sections of DRIPA affected by the Gitxaala decision “is necessary to address the significant litigation risk that that case presents to the province of British Columbia,” Eby told reporters last Wednesday.

The decision is getting cited in other court cases and may lead to the courts requiring the province to amend more of its laws, he said.

“I understand why First Nations leadership are anxious about the fact the province has to put sections of the act on hold until we get clarity from the Supreme Court of Canada or we’re able to find some other path forward with them,” Eby said, “but we just can’t have the very significant litigation risk that is presented by that Court of Appeal case and that is showing up in our courts in a very real way.”

Eby has previously said the government’s intention was always to bring the province’s laws into alignment with UNDRIP carefully and gradually, but that the Gitxaala decision forces the government to make the transition immediately. He has likened it to being made to eat an elephant in one sitting.

The government remains committed to reconciliation, Eby said, noting that the province was settled largely without making treaties with First Nations.

“We will find a way forward with our First Nations partners,” he said. “The work has to continue for the success of the province’s economy, but also to address long-standing social issues that go back to the founding of British Columbia and the separation of Indigenous kids from their families and being punished for speaking their language and practising their culture.”

The B.C. legislature resumes sitting today and is scheduled to meet for just six more weeks before the summer break.

Eby acknowledged there is limited time remaining but said the government will introduce the bill to suspend sections of DRIPA soon and that there will be plenty of time to debate it.

He also said that the government, despite holding the narrowest possible majority in the legislature, has the votes to pass the bill and that NDP MLAs understand the importance of the work.

Grand Chief Stewart Phillip, president of the Union of BC Indian Chiefs, said “there’s absolutely nothing wrong with DRIPA” and described it as a legacy of the much-loved late premier John Horgan.

“I think the problem is Premier Eby himself and the NDP has a colossal leadership problem here in British Columbia,” Phillip said, adding he believes Eby has kept the caucus from fully engaging on DRIPA.

“I would suggest the NDP deal with their leadership issue or the whole party’s going to meet its demise,” he said.

Phillip said he wouldn’t speak for his wife, Joan Phillip, an NDP MLA representing Vancouver-Strathcona, but observed that she has been a dedicated activist for Indigenous rights since she was a teenager and has gone to jail for standing up for rights.

“She is absolutely heartsick about where this issue sits at the time,” he said.

“As for the other MLAs,” Phillip added, “they need to vote their conscience.”

Adam Olsen, now lead negotiator for the Tsartlip First Nation, was a BC Green Party MLA when DRIPA passed in 2019. He recalled celebrating with some of the MLAs who are now being asked to vote to suspend sections of the act.

“The whole group carries the responsibility,” he said, adding that in his seven years as an MLA he never saw an NDP MLA vote against their party.

“There is a distinct problem at the very top of that party,” Olsen said, arguing that Eby is leading in a dangerous direction and it is up to government MLAs to act. “This is the moment for those MLAs to stand up.”

Others warned that the NDP has long counted on support from First Nations voters, but it should not count on them in the future.

Eby said he believes that regardless of the government’s actions on DRIPA, relations with First Nations will be an issue in the next election given the positions taken by contestants in the Conservative Party of BC’s leadership race.

Potential Conservative leaders want DRIPA repealed and conversations and agreements with First Nations to end, Eby said, warning that would lead to chaos for tens of billions of dollars in major projects and the thousands of jobs and significant tax revenue associated with them.

“There is a very clear choice for British Columbians,” he said.

Reprinted from The Tyee.