AuthorNichols, Joshua


On 28 November 2019, the Province of British Columbia (BC) passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA). (1) This legislation implements the United Nations Declaration of the Rights of Indigenous People (UNDRIP) (2) as provincial law. DRIPA is modeled on proposed federal legislation, Bill C-262, that was first introduced by Romeo Saganash as a private Member's bill on 21 April 2016 and ultimately died on the order paper in the Senate. (3) Both legislative instruments aimed at requiring the government to ensure that all of their laws are consistent with UNDRIP. While other states have incorporated UNDRIP into their domestic legal systems, (4) thus far Canada has not. In this respect, DRIPA is unprecedented legislation within BC and, for that matter, in Canada as a whole, and its precise effects are difficult to determine in advance. But what we do know for certain is that there are several ongoing conflicts between the Crown and Indigenous peoples that are testing the limits of the Court's current framework for reconciliation. From the proposed mining activities in TeZan Biny (Fish Lake) in the traditional territories of the Tsilhqot'in Nation (5), to the construction of the Site-C hydroelectric dam on the Peace River in Treaty 8 territory (6), the expansion of the Trans Mountain Pipeline across the territories of Indigenous nations stretching from the interior to the coast (7) and, finally, the Coastal GasLink Pipeline in the traditional territory of the Wet'suwet'en (8), it is clear that the process of reconciliation has arrived at a pivotal moment. (9) This is the context into which DRIPA has arrived; simply put, at this moment, the future of reconciliation in BC-and indeed, in Canada as a whole--is deeply uncertain. This uncertainty is by no means unprecedented in the history of the relationship between Indigenous peoples and the Province of BC, which is a history made up of fleeting moments of promise and long periods of outright refusal. So, what, if anything, can DRIPA do to bring the parties back to the path of mutual reconciliation?

The folklore surrounding the will-o'-wisp offers a helpful image for us to consider in this moment of uncertainty. A will-o'-wisp is an atmospheric light that is seen by travelers at night who are, in most cases, making their way through swamplands. The unfortunate travelers who elect to follow the will-o'-wisp deeper into the swamp soon find themselves lost--what they mistook for a guiding light turns out to be little more than a fool's fire (ignis fatuus). This folktale can thus be cashed out into the practical truism that travelers should exercise caution when following unfamiliar lights over uncertain territory. But if we stopped here, it could well seem that caution requires us to see all unfamiliar lights as false. In this case, we refuse the promise of the pale fires of possibility and blindly follow the well-trod path of the status quo. This can be a wise move; after all, it does seem to be the council that the example of the will-o'-wisp offers us. But this is a hasty conclusion. The will-o'-wisp example operates on the presumption that the path that the traveler is on is a stable and secure one. It could well be possible that the pale fire that the traveler sees in the distance is not fool's fire, but the light from the lantern of another traveler who is attempting to warn the traveler that the path that they are following is unstable. In this case, the caution that once served to increase the acuity of our vision leaves us blindly clinging to the status quo. In other words, we have followed the small wisdom of caution to the grand folly of becoming our own jailor. The takeaway here is relatively simple: following the passing of DRIPA, many commentators will be employing some version of the common wisdom that we find in the story of the will-o'-wisp. They will urge us to follow the wisdom of caution, but they will do so without providing a real survey of the path that we are currently on. Our response to this is that we should certainly approach this moment with caution, but for this caution to prove helpful to us, we will need to consider both the available light and the path that we are currently walking on. Narrowing our focus to one or the other alone would be to confuse the exercise of caution with a game of chance. Turning our attention back to our brief survey of this moment in the history of reconciliation, we can clearly see that the path we are currently on is anything but stable and secure. Two recent examples help draw out the nature and degree of instability: first, on 4 February 2020, the Federal Court of Appeal issued its Coldwater decision on clearing the way for the Trans Mountain Pipeline expansion. Rueben George, a spokesperson for the Tsleil-Waututh Nation, stated that "reconciliation stopped today." (10) Second, on 6 February 2020, the RCMP enforced the injunction that Church J granted to Coastal GasLink in Coastal GasLink 2 and began the process of arresting the traditional chiefs and their supporters in the Unist'ot'en Camp. On 8 February 2020, as the RCMP continued the process of enforcing Church J's decision, Unist'ot'en matriarchs and Indigenous supporters went into ceremony and burned the injunction on a traditional funeral pyre with a homemade flag on top reading, "Reconciliation is Dead". (11) While we believe that neither of these examples can be understood as speaking for "the Indigenous perspective" in Canada (such generalizations are as useful as similar fictions like "the Canadian perspective"), they do reflect a significant and growing current of sentiment within many Indigenous communities, which warrants very careful attention. Such shifts and flows of sentiment are very much akin to the changes of weather: attempting to predict their movements too far into the future is a game fit only for fortune tellers and farmers' almanacs, but failing to read the immediate horizon leaves you unable to interpret the present. And so, we return to our initial question: what are we to make of DRIPA? Is it a will-o'-wisp that will draw us further into the swamps of constitutional crisis, or the guiding light of a fellow traveler showing us a better way through?

This brings us to the purpose of this paper. Our overarching aim is to provide a balanced consideration or the possibilities that DRIPA and UNDRIP open up. This will require us to begin with a clear survey of the status quo. Naturally, no survey can be complete--the urge, or perhaps better, the compulsion, to present this kind of "absolute proof" stems from the very unmeasured caution that we are seeking to dispel. Our objective here is thus far more modest; we will offer a brief survey of the current state of subsection 35(1) of the Constitution Act, 1982. (11) In our view, the three decades of litigation following R v Sparrow (13) have drawn us into very uncertain territory indeed. At first glance it could seem that Coldimter and Coastal GasLink 2 are dissimilar cases. The first case concerns the duty to consult, whereas the latter concerns an application for an interim injunction. But if we set this narrow and formalistic distinction aside, we quickly see that the question of the so-called right (or lack thereof) to a "veto" in the duty to consult and the status of Indigenous law as a defence in Canadian courts both speak to the position of Indigenous peoples within the constitutional order. Put differently, in both Coldwater and Coastal GasLink 2 the courts have taken an approach to the section 35 jurisprudence that is built upon the idea that the Crown has sovereignty over Indigenous peoples. This view of the meaning of section 35 necessarily entails that Indigenous self-determination can only be understood in the vocabulary of Charter (14) rights, which remain subject to unilateral infringement. It is this view of section 35 that supports the Federal Court of Appeal's claim that "imposing too strict a standard of 'perfection', 'reasonableness' or 'meaningf ulness' in assessing whether the duty to consult has been adequately met would de facto create a veto right." (15) It is also the presumption that leads Church J to conclude that,

... Indigenous customary laws do nor become an effectual part of Canadian common law or Canadian domestic law until there is some means or process by which the Indigenous customary law is recognized as being part of Canadian domestic law, either through incorporation into treaties, court declarations, such as Aboriginal title or rights jurisprudence or statutory provisions." (16)

If this were indeed a "general rule" it would mean that Indigenous customary laws are somehow lesser than the English common law, which persists precisely because it does not require this kind of "recognition". (17) These examples are not isolated failures of legal reasoning; rather, they are part and parcel of what John Borrows has aptly termed Canada's colonial constitution. (18) These two cases provide us with clear examples of the current state of section 35 jurisprudence, which, we argue, is at risk of becoming little more than a legal straitjacket for Indigenous peoples. Our aim in this paper is to show the potential for DRIPA to reinforce an interpretation of section 35 that begins from the presumption that sovereignty has always been shared with Indigenous peoples. In this view, section 35 is not (pace Sparrow) an extension of the Charter, but of the division of powers set out in sections 91 and 92 of the Constitution Act, 1867. (19)

Naturally, a comprehensive survey of the potential of DRIPA to move us in this direction is not possible within the confines of this paper, so we will focus our attention on how this legislation could help courts past the related problems of the legal status of Indigenous laws and the role of consent in the Haida framework. (20) In Part 1, we will focus on the legal status of...

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