Adam Pankratz: B.C.'s reconciliation nightmare gets even worse

It has been clear for some months now that David Eby and the B.C. NDP’s approach to Indigenous reconciliation would have ruinous consequences for British Columbia’s economy. Last Friday, the situation got even worse, as a new court ruling poured more cold water on economic activity in the province and opened the door to every B.C. law being subject to interpretation through a United Nations human rights document. The implications for British Columbia could not be much more dire.

On Friday, the B.C. Court of Appeal ruled in favour of the Gitxaala and Ehattesaht First Nations that B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) — which seeks to align the laws of British Columbia with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) — did in fact affirm UNDRIP as “the interpretive lens through which B.C. laws must be viewed and the minimum standards against which they should be measured.” That is to say that all B.C. laws, even if they have not yet been changed, are immediately subject to interpretation through UNDRIP, when the NDP government had explicitly said that DRIPA was not designed to strike down existing B.C. laws.

A key paragraph in the ruling should raise the alarm for any business considering investing in British Columbia. Paragraph 181 lays out Justice Gail Dickson’s view as to where there could be future potential for dispute arising from DRIPA and the current law of British Columbia. The ruling foresees five areas that are so broad that the court is opening up any and all B.C. laws to interpretation through UNDRIP.

The ruling states areas for dispute could be: “i) whether there is an inconsistency between a British Columbia law and UNDRIP (as in this case); ii) whether the type of inconsistency in issue must be addressed by the Crown taking measures; iii) what measures should be taken; iv) the adequacy of the consultation process; or v) the meaning or extent of ‘cooperation.’”

The ruling then continues to say that the above areas would be “justiciable,” meaning they could be litigated in court. To quote the ruling: “In every instance, justiciability concerns may arise, and, if they do, the court will need to determine whether, given the nature of the dispute, including the relevant articles of UNDRIP, the matter is justiciable.”

Taking a step back, it seems almost impossible to think of any area of the B.C. economy (or indeed any area of B.C. life) which would not potentially be touched by one of those future areas of dispute, and thus open the path for a court to force the UNDRIP doctrine onto every aspect of life in British Columbia.

The significance of the ruling cannot be overstated, given that the court has deemed that UNDRIP must be the “interpretive lens” through which all B.C. laws are viewed. Two articles in particular from the UN document are informative of what that means.

Article 26 states “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use.” That means: you claim it, you own it. So is there no Crown land in B.C. now? Do parks exist for the public or are they First Nations property?

Article 32.2 of UNDRIP states that a country must “consult and cooperate in good faith with the indigenous peoples concerned 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.”

“Informed consent” could mean a First Nations veto over resource projects or future economic development and at a minimum the ruling opens up all B.C. laws and programs to endless challenges for not being consistent with UNDRIP. Education, health care, the list needn’t just include resource projects or infrastructure as UNDRIP is a wide and all encompassing document.

Premier Eby has said he’s concerned about the court’s recent ruling and interpretation of the law, suggesting the government may amend DRIPA to ensure the legislature, not the courts, remain in control of how UNDRIP is implemented in the province. No one should believe him or his government, though. Since taking power Eby’s tenure has been marked by secrecy and duplicity on any issue involving B.C.’s First Nations. Whether hiding land use deals or failing to protect private property rights, Eby’s NDP has zero credibility left on this file.

Following the court ruling last Friday, more bad economic news is now a certainty, as businesses look at British Columbia as a province no longer ruled and governed by its own laws, but rather the esoteric imaginings of a United Nations human rights committee.

National Post

Adam Pankratz is a lecturer at the University of British Columbia’s Sauder School of Business.