PART 2: The BC Government Has Not Enshrined UNDRIP Into Law
The B.C. government last year announced, to unanimous applause in the BC Legislature, that it was the first province to enshrine UNDRIP into law.
But BC’s celebration is premature. BC’s new law hasn’t actually done that yet.
BC’s new law, the Declaration on the Rights of Indigenous Peoples Act sets out four items of work to be done in future. I have not seen anything indicating that any of this future work was completed when the new Act was being celebrated. This law enshrines nothing, it is really just a to do list.
“Enshrined” in law means protected by law. To say that this to do list has already made UNDRIP a part of legally enforceable BC law is wrong.
What BC’s Supposed “Enshrinement” of UNDRIP Doesn’t Do
Here are the 4 items on BC’s to do list as set out in its new law:
Section 3 of the new law requires the government to ensure that provincial laws will be consistent with the Declaration.
There are thousands of provincial statutes and regulations filling tens of thousands of pages. It is highly doubtful that any of them specifically create discrimination against BC First Nations. If their effect is discriminatory, or disadvantages FN’s in any way, it will probably not be in the way the laws are written but in how they are applied or not applied. As the problems are systemic rather than statutory, reading the laws themselves to look for inconsistencies with UNDRIP will not reveal problems with their application.
To review closely and thoroughly all of the impacts of this huge body of laws would occupy several years for a large team of lawyers and economists. Such a massive review will probably be avoided in favour of the selection of a few potentially controversial laws for a quick review, in consultation with FNs.
Section 4 requires the government to prepare and implement an action plan to achieve the objectives of the Declaration. The minister must then present the plan to the Legislative Assembly for its review.
No time limit has been set for the preparation of this plan. The law doesn’t prescribe what must be in it. It will be a complex plan involving several government departments, each of which will have to approve it. Whether this plan will “enshrine” the broad principles of UNDRIP in a better way than those principles are already found in BC and federal law remains to be seen.
Section 5 requires the minister to prepare an annual report of progress for the year ending March 31. The annual report, although desirable, doesn’t enshrine anything into law.
Sections 6 and 7 authorize a cabinet member to enter into an agreement with an Indigenous governing body covering various matters. This could have been done years ago, without UNDRIP.
If and when the BC government successfully completes these four items and obtains the necessary legislative approvals for them it can then truthfully boast that it is the first province in Canada to enshrine a set of new laws inspired by UNDRIP. But not yet.
For the reasons I will explain in PART III, BC cannot actually “enshrine” UNDRIP into BC law, because UNDRIP is not a law. It is merely a vague declaration of some general principles. All BC can do is amend or enact some laws that, in the opinion of the BC legislative drafters, would be the laws that UNDRIP would create if UNDRIP was a law.