B.C. marks two years since passing law to adopt declaration on Indigenous rights

B.C. marks two years since passing law to adopt declaration on Indigenous rights
File photo.

British Columbia recently marked two years since passing legislation that requires the province to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples, though an Indigenous leader and legal expert say many First Nations are still wondering how and when the commitments will be realized.

“There’s been incremental, positive movements, but certainly not the tectonic shift, if you will, that many First Nations were expecting,” said Terry Teegee, regional chief of the B.C. Assembly of First Nations, which represents more than 200 communities.

They’re looking for “substantial changes” in provincial law, policy and practice that would overhaul how decisions are made in their territories, he said in an interview.

The UN declaration requires governments to obtain free, prior and informed consent before taking actions that affect Indigenous Peoples and their lands.

The B.C. government’s legislation stipulates that alignment of the province’s laws must happen”in consultation and co-operation” with Indigenous Peoples.

The draft implementation plan outlines proposed actions for the next five years, organized into four themes: the right of self-government; Indigenousrights and title or jurisdiction over their territories; ending racism and discrimination against Indigenous Peoples; and ensuring their social, economic and cultural well-being.

Murray Rankin, the minister of Indigenous relations and reconciliation, said he was in the process of reviewing the final plan. The COVID-19 pandemic, wildfires and severe flooding hampered discussions with First Nations, he said in an interview, but there had been “enormous … co-development” on the draft released last June.

However, Teegee said the declaration isn’t being adopted consistently across the province’s 20 ministries and progressso far hasn’t been the product of true partnership and collaboration with Indigenous Peoples.

The government has a responsibility to change its structure and culture to reflect that it has committed to Indigenous Peoples to make decisions together, he said.

“We’re beyond consultation, we’re on the road towards consent.”

The creation of a dedicated secretariat to co-ordinate B.C.’s reconciliation efforts and ensure consistency with the declaration holds some promise, Teegee noted.

Rankin said the depth and scope of consultation required by the declaration has been a “sea change” for many ministries. Some are doing better than others, he said, but the commitment is real and implementation should improve over time.

“It’s transformational. It’s so significant, the work that’s underway on the declaration,” he said. “I think we’re going to have to make progress, in some cases gradually, in some cases immediately, in order to do justice to those commitments.”

There was a “lengthy engagement process on co-development” for the draft plan, said Merle Alexander, a Vancouver-based lawyer who serves as general counsel to the B.C. Assembly of First Nations and represents numerous others.

Ultimately, though, the plan didn’t reflect some of the key input from Indigenous Peoples, including specific statutes it could focus on changing to align with the declaration, said Alexander, who is a member of the Kitasoo/Xai’xais First Nation.

“Our vision for the plan was for it to embody some dramatic legal reform, whereas I think the province’s perspective was really to take a much more conservative, incremental approach.”

A pillar of B.C.’s declaration legislation sets out provisions for the province to negotiate agreements with Indigenous governing bodies to establish shared, consent-based decision-making in their territories.

The Supreme Court of Canada has already established the duty to consult, which means lawmakers must have dialogue with Indigenous Peoples about proposed decisions that could negatively affect their rights and title; but consultation does not guarantee or equate to the standard of free, prior and informed consent.

Rankin said B.C. is committed to negotiating consent-based agreements with Indigenous governments of all forms, be they elected, hereditary or a hybrid leadership system. Cabinet must sign off on a mandate to negotiate under the declaration and local governments and industries must be kept informed, he said.

The central government for the Tahltan Nation became the first to receive cabinet approval and start discussions last June. The nation in northwestern B.C. has strong ties to the mining sector and the negotiations are aimed at reachingan agreement related to environmental assessment approvals for two major projects.

“Because they’ve got a good relationship with Tahltan, and because Tahltan has such an effective governance system, the province is comfortable and has given us a mandate to negotiate a section seven agreement,” the minister said.

Across B.C., Alexander said First Nations have been asking to start negotiating consent-based agreements, but so far only the Tahltan has received the green light.

It’s not clear to First Nations what exactly makes the province “comfortable” to start negotiations, Alexander said. It’s likely officials are looking for some certainty of representation before signing off on the talks, he said, since First Nations can have vastly different governance structures and access to resources.

The province needs to acknowledge that it will take investment in First Nations’ governance to support those with less capacity and access to resources and help create the legal certainty officials are looking for, Alexander said.

In the meantime, he speculated that establishing consent-based agreements will happen at a “completely different pace” for those with greater capacity.

Alexander said he had hoped the secretariat tasked with co-ordinating B.C.’s efforts to implement the declaration would be established through a legal mechanism.

Instead, he said, it appears it’s being created through policy, which isn’t legally binding and may be amended at the government’s discretion.

“The idea that (the secretariat will) be sort of a self-regulated entity for how they’re supposed to be implementing (the declaration act) is problematic,” he said.

“There really aren’t any enforcement mechanisms.”

Rankin said the aim of the forthcomingsecretariat is to make sure the government honours its commitments under the act and it should also help regional offices across B.C. work with local Indigenous rights holders to implement the declaration.

“We hope to have a significant Indigenous-led public service, in other words, I hope there’ll be a significant number of Indigenous people working there,” the minister said when asked what the secretariat would look like and who would be included.

This report by The Canadian Press was first published Dec. 30, 2021.

Brenna Owen, The Canadian Press

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