FOREWORD.

• Author: Borrows, John
• Position: ARTICLES

The government of British Columbia recently passed legislation called the Declaration on the Rights of Indigenous Peoples Act (DRIPA). (1) This legislation aims to make the United Nations Declaration on the Rights of Indigenous People (1) (UNDRIP or the Declaration) part of provincial law. The essays in this Special Issue reveal some of the challenges and opportunities accompanying the Declaration's implementation.

CHANGE IS HAPPENING, SLOWLY

When I arrived at the University of British Columbia (UBC) in 1992 as an Assistant Professor and Director of the Native Law Program, provincial policy related to Indigenous peoples was slowly starting to change. Professor Douglas Sanders was working with colleagues internationally to advance the Declaration's development. At the same time, the province of British Columbia (BC) was on the verge of major policy changes for dealing with First Nations. After 120 years of refusing to negotiate with Indigenous peoples, the province was preparing to finally deal with First Nations on a collective basis. The past 28 years have shown some small progress in the field, but much remains to be done. The 2014 Truth and Reconciliation Commission provided recent prompts for action. Such action is demonstrated by the commitment of BCs NDP government to adopting UNDRIP, which also formed a "foundational piece" (3) of its 2017 Confidence and Supply Agreement with the BC Green Party caucus. The new Declaration on the Rights of Indigenous Peoples Act appears as the province continues to struggle to overcome its denial of Indigenous governance, title, and resource rights.

During the last three decades I have seen a handful of treaties completed with the Nisga'a, Maa-nulth First Nations, Tla'amin Nation, Tsawwassen First Nation, and Yale First Nation. There are also approximately 25 Incremental Treaty Agreements between First Nations and the province. Furthermore, Indigenous led bodies like the First Nations Health Authority and First Nations Education Steering Committee have developed significant expertise in their respective fields with the province's support. We have also seen many high-profile Aboriginal rights and title cases with names like Sparrow (4) Van der Peet, (5) Gladstone, (6) Delgamuukw, (7) Haida Nation8 and Tsilhqot'in (9) which are changing resource use and land ownership in the province in slow yet steady ways. At the same time, failure to deal with these issues in a satisfactory manner has led to high profile Indigenous blockades and occupations from time to time. The drastic overrepresentation of Indigenous peoples in the child welfare and criminal justice systems has also captured media attention because of the profound crisis in these fields. This is added to the tragedy of missing and murdered women and girls which has been a constant source of pain through the years too.

As each of the above examples illustrate, the search for effective legal processes to deal with Indigenous issues still eludes us. In the meantime, Indigenous peoples continue to suffer: life expectancy is 10 to 15 years shorter than for other people in Canada; (10) infant mortality rates are two to four times higher; (11) employment on reserve is over 25% below the national rate; (12) median income is approximately 50% less than non-Indigenous income; approximately 57% of First Nations young adults on reserve have completed high school compared to 89.2% of non-Indigenous young adults off-reserve; (14) and over 40% of reserve homes require major repairs with problems in plumbing, water access and quality, as well as exposure to allergens and mould. (15)

In this context, British Columbia introduced the Declaration on the Rights of Indigenous Peoples Act. The question for this Special Issue is how DRIPA will operate given its relationship with other provincial, national, international and Indigenous laws, and whether its enactment will make a positive difference.

My view is that the Declaration on the Rights of Indigenous Peoples Act is a necessary step in facilitating the recognition of Indigenous law, implementing constitutional rights related to Indigenous peoples, and applying international law principles relative to Indigenous peoples. Such laws are necessary because Canada largely places legislative power--sometimes called positivism--at the heart of political action. The Supreme Court of Canada (SCC) made this clear when it wrote that "Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority." (16) Parliamentary sovereignty is exercised legislatively to set standards wh ich allows courts to hold governments accountable for the principles and processes they have adopted. (17)

At the same time, DRIPA is necessary but not sufficient because law does not equal legislation when it comes to Indigenous peoples. Indigenous peoples have their own laws. Indigenous sovereignty has legal implications for how the Crown exercises its powers, even if no legislation is present. (18) Constitutionally, if Aboriginal or treaty rights are effected, laws must recognize and affirm their existence. Furthermore, law is something that is interpreted and practiced by citizens as they operationalize; internalize; and resist constitutional, legislative, and customary law's obligations. Law must be lived, not just legislated, and its effectiveness can only be measured by its effects on the people and places it purports to address.

UNDRIP AND INDIGENOUS LEGAL TRADITIONS

In other spaces I have argued that Indigenous peoples must also take steps to implement UNDRIP in accordance with their own Indigenous legal traditions. (19) In addition to necessary...