On June 11, 2021, the B.C. government released its Draft Action Plan relating to the implementation of the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”). The Draft Action Plan arrives two years after the B.C. government unanimously passed DRIPA – ambitious legislation that adopts the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) as the overarching framework for reconciliation with Indigenous peoples in the province.
Section 4 of DRIPA requires the B.C. government to prepare and implement a draft action plan in consultation with Indigenous peoples in B.C. outlining how the objectives of UNDRIP will take shape in the province. Minister of Indigenous Relations and Reconciliation, Murray Rankin, promises that the Draft Action Plan will help “create clarity and predictability” for all British Columbians as the province strives to make “real progress on reconciliation.” Despite these assurances, the Draft Action Plan yields more questions than answers, especially regarding the future of the province’s natural resource and major project development sectors.
From UNDRIP to Draft Action Plan
Passed by the UN General Assembly in 2007, UNDRIP is a non-binding resolution that outlines the individual and collective rights of Indigenous peoples. UNDRIP encompasses rights relating to all aspects of Indigenous life including culture, self-government, human rights, lands and resources. In the context of natural resources, UNDRIP includes extensive provisions on rights to land, economic development and self-governance. In particular, Article 32 requires states to not only consult and cooperate in good faith with Indigenous peoples in relation to major project development on Indigenous lands, but to additionally obtain the free, prior and informed consent (“FPIC”) of Indigenous peoples prior to proceeding with such development.
DRIPA came into force in B.C. on November 28, 2019. The Act does not automatically make UNDRIP law in the province but obligates the B.C. government to take all necessary measures to ensure B.C.’s laws are consistent with UNDRIP. As mentioned above, section 4 sets out the B.C.’s government obligation to prepare and implement a draft action plan – an instrument the government suggests will “provide a province-wide, whole of government roadmap” to reconciliation and Indigenous-government relations over the next five years.
The Draft Action Plan is currently in its consultation phase with Indigenous peoples in the province, as required by DRIPA. This process involves seeking input from B.C.’s Indigenous peoples to ensure the action plan appropriately represents the priorities and interests of Indigenous nations, communities, and individuals across the province. The B.C. government recently extended the consultation period to September 15, 2021 in light of ongoing wildfires and residential school findings in the province. Following this consultation, the B.C. government will lay the action plan before the Legislative Assembly “as soon as practicable.” The B.C. government plans to update the Draft Action Plan within five years to identify new and emerging actions to facilitate the implementation of UNDRIP in the province.
The Draft Action Plan: Contents
The structure of the Draft Action Plan is hierarchical with nine overarching “shared understandings” that inform four distinct themes, each equipped with a unique set of actions with corresponding goals and outcomes.
While an examination of the shared understandings is outside the scope of this post, several principles stand out. First, the Draft Action Plan reflects a “comprehensive” interpretation of UNDRIP, meaning that the instrument is intended to be read as an indivisible whole. Also, the Draft Action Plan adopts a “distinctions-based” approach, thereby recognizing the unique rights, interests and circumstances of Indigenous peoples in B.C. and the distinctions between First Nations, Métis and Inuit people. Lastly, through the Draft Action Plan the B.C. government commits itself to cooperation and transparency through ongoing consultation and cooperation with Indigenous peoples and periodic review and publication obligations.
Actions by theme with corresponding goals and outcomes:
The Draft Action Plan organizes the actions to be taken between 2021 and 2026 by the B.C. Government in relation to implementing DRIPA under four themes:
1. Self-determination and inherent right of self-government
The B.C. government plans to collaborate with Indigenous peoples to strengthen Indigenous governance structures. The overarching goal under this theme largely relates to the ability of Indigenous communities to meaningfully govern themselves through their own institutions and laws. As a result, the Draft Action Plan aims to ensure Indigenous peoples have the necessary support and infrastructure to be “recognized and engaged with as governments with formalized and predictable relationships with the Province.”
The actions outlined under this theme pose several implications for natural resource and major project development. The Draft Action Plan identifies a shift away from short-term transactional arrangements to the co-development of long-term agreements that recognize and support Indigenous self-determination and economic independence. Further, the Draft Action Plan seeks to develop new distinctions-based policy frameworks for resource revenue-sharing and other fiscal mechanisms with Indigenous peoples.
2. Title and rights of Indigenous peoples
While this theme deals with a wide array of Indigenous rights, it primarily focuses on the rights of First Nations to own, use, develop and control lands and resources within their territories. On the topic of Indigenous title and rights disputes, the Draft Action Plan signals a shift away from expensive and lengthy litigation toward government-to-government processes with an eye toward reconciliation. The actions tied to this shift range from the creation of a dedicated secretariat tasked with overseeing UNDRIP compliance across B.C.’s laws to direct engagement with Indigenous partners on issues related to conservation and biodiversity.
For project proponents, a potentially significant aspect of the Draft Action Plan under this theme is the proposed negotiation of new joint decision-making and consent agreements under s. 7 of DRIPA. The Draft Action Plan does not detail the contents or scope of forthcoming joint decision-making and consent agreements, and in fact does not mention FPIC. The Draft Action Plans therefore does not address the level of consent required to pursue project development in B.C. moving forward, or the potential role of Indigenous groups in statutory decision-making.
3. Ending Indigenous-specific racism and discrimination
This theme reflects the B.C. government’s goal of ensuring Indigenous people feel safe while accessing provincial institutions and resources. In particular, the Draft Action Plan aims to curb the overrepresentation of Indigenous people in the provincial justice system and address the particular concerns and needs of Indigenous women, girls and 2SLGBTQQI+ people. The B.C. government plans to achieve these goals through essential training initiatives across the public sector and reforming school curricula.
4. Social, cultural and economic well-being
This theme includes a wide variety of proposed actions to support Indigenous peoples in protecting, maintaining and developing their distinct social, cultural and economic institutions. These proposed actions range from initiatives focused on the preservation of language to improved internet-access and business opportunities on Indigenous territories. On the economic front, the Draft Action Plan calls for further engagement with First Nations on clean energy opportunities and increased investment in Indigenous tourism operations.
As noted above, the B.C. government has indicated that it will table the Draft Action Plan in the B.C. legislature as soon as practicable. Although the Draft Action Plan has the potential to affect government decision-making processes applying to project proponents, to date, the B.C. government has not indicated whether or how input on the Draft Action Plan will be sought from non-Indigenous parties. We will continue to monitor developments regarding the Draft Action Plan and DRIPA in future posts.
Lawson Lundell's Environmental, Indigenous and Natural Resources Blog focuses on environmental, indigenous and natural resources law, as well as related litigation. Included are summaries of significant cases from Canadian appellate courts, changes in the legal framework governing resource development including energy and climate change policy, and key decisions from the more influential regulatory bodies in Canada.
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