New BC legislation now in force to implement Declaration on the Rights of Indigenous Peoples Act

On November 28, Bill 41, the Declaration on the Rights of Indigenous Peoples Act (the Act), came into force in British Columbia upon receiving royal assent. British Columbia is now the first province in Canada to bring into force legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Act marks an important milestone in BC’s efforts to advance reconciliation. Over time, it is expected there will be further legislative changes to align existing BC laws with UNDRIP principles.

The United Nations Declaration on the Rights of Indigenous Peoples

In 2007, the United Nations General Assembly adopted UNDRIP, which provides a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world. It includes 46 articles covering all facets of the rights of indigenous peoples such as culture, identity, religion, language, health, education and community. Article 19 has received particular attention and states: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

UNDRIP is not a legally binding instrument under international law. The Truth and Reconciliation Commission confirmed UNDRIP as a framework for reconciliation and has called on all levels of government to implement UNDRIP.

The Declaration on the Rights of Indigenous Peoples Act

The Act was developed in consultation and collaboration with the First Nations Leadership Council, the First Nations Summit, and the BC Assembly of First Nations. The Act provides a framework for implementing UNDRIP and requires the provincial government to take all necessary steps to implement UNDRIP.

First, the Act affirms the application of UNDRIP to BC law and requires that the provincial government take all measures necessary to ensure BC law is consistent with UNDRIP. The Act states that this occur in consultation and cooperation with Indigenous peoples. In addition, the Act explicitly identifies its purposes to include implementing UNDRIP and supporting the affirmation and development of relationships with Indigenous governing bodies. “Indigenous governing body” is defined broadly to include any entity authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982.

Second, the Act requires the provincial government to prepare, present or file with the Legislative Assembly, and implement an action plan in consultation and cooperation with Indigenous peoples in British Columbia. To ensure further accountability, the action plan must contain a date when the government must initiate a review of the action plan.

Third, the Act requires the Minister of Indigenous Relations and Reconciliation to prepare and present or file with the legislative assembly an annual report in consultation and cooperation with Indigenous peoples in British Columbia. The annual report must include an update on the progress that has been made towards ensuring the laws of British Columbia are consistent with UNDRIP and achieving the goals in the action plan.

Finally, the Act expressly states the government may enter into agreements with Indigenous governing bodies to make certain statutory decisions jointly, or require the consent of Indigenous governing bodies before a statutory decision is made. To increase transparency, such agreements must be made publicly available.

Impact of the Act

As the Act was debated, the provincial government acknowledged that changes will not happen overnight. Nonetheless, the Act is a critical step forward on the path to reconciliation. Based on the obligations the Act places on the government, we can expect further legislative changes to align existing BC legislation with the principles of UNDRIP and greater transparency about proposed provincial government action.

The author wishes to thank articling student Ryan Griffith for his help in preparing this legal update.