British Columbia amends Interpretation Act so BC laws interpreted as consistent with s. 35 of Constitution Act and UNDRIP

On November 25, the BC government amended the Interpretation Act, to require that most provincial laws be interpreted in a manner consistent with section 35 Aboriginal rights and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). On their face, the amendments are narrow: they ensure that where there is ambiguity, the interpretation of provincial laws must not derogate from section 35 and UNDRIP. Yet whether these amendments will have unanticipated substantive regulatory or common law effects remains to be seen. 

The Interpretation Act provides interpretive guidance for BC laws. The recent Interpretation Amendment Act, S.B.C. 2021, c. 36 (the Act) amends the Interpretation Act to require:

• that every provincial enactment is to be construed as upholding and not abrogating or derogating from the Aboriginal and treaty rights of Indigenous peoples as recognized and affirmed by section 35 of the Constitution Act, 1982; and 
• that every provincial statute and regulation be construed as being consistent with UNDRIP.  

These changes stem from the province’s draft action plan developed under the Declaration on the Rights of Indigenous Peoples Act, which required the BC government to, among other things, take “all measures necessary to ensure the laws of British Columbia are consistent with [UNDRIP].”  

The Act does not directly change existing BC laws, instead only requiring a certain interpretation of laws be preferred where multiple interpretations are available. Nor does the Act substantively alter the Crown’s obligations and duties toward Indigenous peoples, including the duty to consult and accommodate and the need to justify any infringements of Aboriginal rights. In this sense, the Act may be seen as a guide to courts and tribunals, and a step by the province in furtherance of reconciliation.

But these amendments also create uncertainty. For instance, the provisions of UNDRIP do not currently have the force of law in BC or Canada and do not alter existing Indigenous law jurisprudence, and it is not clear how any conflicts between the two are to be resolved where these interpretive principles apply. The Act may also alter administrative bodies’ interpretations of their home statutes and regulations in unanticipated ways, such as in how Indigenous interests are to be addressed in their processes. And given that subsidiary laws often create substantive common law rights, it remains to be seen whether those substantive rights will be altered when considered in the context of common law claims made by Indigenous groups. 

The authors wish to thank articling student Mackenzie Hayden for his help in preparing this legal update.