Warren Mirko: Not helpful for B.C. Indigenous leader to declare ‘war’ on common sense policies

As the incoming B.C. Conservative government prepares to deliver on its promise to repeal the Declaration on the Rights of Indigenous Peoples Act (DRIPA), Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, stated this week that doing so would be a “declaration of war.”

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After an election in which competing positions were openly debated and voters knew what was at stake, any talk of war is wholly unnecessary and provocative. Concerns over DRIPA did not suddenly emerge with the selection of a new government. Even outgoing premier David Eby acknowledged the serious legal uncertainty it created, proposing amending or even suspending the legislation before retreating in the face of opposition from First Nations leaders and his own caucus.

Premier-elect Lorne Doerkson was unambiguous throughout the election campaign that repealing DRIPA was a top priority, while also reaffirming that he is “completely committed to working with First Nations.”

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Phillip can oppose repeal, but suggesting that British Columbia could become a battleground over a legislative decision he opposes only serves to stifle public debate. B.C. Green Leader Emily Lowan recently reinforced this narrative by linking Conservative efforts to repeal DRIPA with anti-Indigenous racism.

Their approach fosters the mistaken impression that DRIPA is somehow necessary to protect Aboriginal rights. It isn’t. Opposition to the legislation should not be conflated with opposition to Aboriginal rights.

As Aboriginal law expert Tom Isaac recently explained on CBC’s “B.C. Today,” Aboriginal rights do not flow from the declaration. They are recognized and protected under Section 35 of the Constitution Act, 1982, regardless of whether DRIPA remains in force. Isaac has also described Canada’s legal framework as the world’s leading system for protecting Indigenous rights against unilateral government action.

Several Indigenous leaders have openly challenged the confrontational rhetoric surrounding DRIPA and questioned whether it reflects the views of their communities.

Chris Sankey, an Indigenous business leader and former elected councillor of the Lax Kw’alaams Band, addressed Phillip, B.C. Assembly of First Nations Regional Chief Terry Teegee and Heiltsuk Chief Marilyn Slett, writing: “You do not represent the vast majority of our communities.” He argued that their comments have hurt reconciliation and damaged relationships with other British Columbians.

Chawathil First Nation Chief Aaron Pete was unequivocal in his response to Phillip: “It is not a declaration of war.” He called such language “irresponsible, dangerous and not productive in the least,” adding that legislation must reflect the expectations of voters, as “that’s how democracy works.”

Former Haisla chief and now federal MP Ellis Ross, who originally voted for the legislation, later acknowledged: “I thought it was harmless, and I was wrong.” Responding to Phillip’s latest remarks, Ross called for an end to the divisive politics, warning that ordinary people are “paying the price.”

Chief Teegee previously described any repeal or amendment of DRIPA as “a slap in the face” to First Nations, reminding British Columbians that the legislation was unanimously supported in 2019. But unanimous support seven years ago does not place the legislation beyond reconsideration today. On the “Jas Johal Show” this week, Teegee questioned what would replace DRIPA, pointing to disputes over mining, docks and decision-making authority.

The answer is Canada’s Constitution. Section 35 protects Aboriginal rights in all 10 provinces. Repealing a provincial statute does not erase those protections or the Crown’s constitutional obligations.

The incoming government’s commitments to protect established property rights and preserve public access to Crown land are welcome. But repealing DRIPA will not automatically undo the agreements that have already been signed under the legislation.

The government should undertake an immediate review of existing agreements and those under negotiation that affect public lands and resources, particularly arrangements involving shared decision-making and consent requirements authorized under Section 7 of DRIPA.

That review should establish the legal obligations involved, options for amendment or termination, and potential impacts on First Nations, businesses, tenure holders and communities, including where projects have already been approved. Any decisions about the future of these agreements must consider the public interest, respect existing legal obligations and avoid creating further uncertainty.

Going forward, the province should further establish clear rules for public disclosure and consultation before new agreements affecting public lands or governing authority are finalized. Local governments, neighbouring First Nations, property owners and other affected interests should have an opportunity to understand what is being proposed and raise concerns before decisions are made.

Resolving Aboriginal rights and title should be done through a renewed approach to negotiating treaties. Where agreement cannot be reached, contested Aboriginal title claims should be determined by the courts rather than through separate recognition agreements outside the treaty process.

British Columbians should also be prepared for their government to defend the public interest in court. The previous government too often avoided difficult public debates, instead allowing major negotiations to proceed behind closed doors.

The election demonstrated that voters are willing to engage with difficult questions when given the opportunity. The incoming government should trust the public with the facts, explain its decisions and stand behind them. Disagreement is no excuse for secrecy, nor should threats of confrontation determine public policy.

National Post

Warren Mirko is executive director of the Public Land Use Society and a former B.C. Conservative candidate in Kootenay–Monashee.

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