BC Backs Off on DRIPA Amendments. For Now

It was up to government house leader Mike Farnworth to back out of a confrontation over Indigenous rights that could have seen the BC NDP government fall.

In recent weeks Premier David Eby has insisted a bill is urgently needed to pause sections of the Declaration on the Rights of Indigenous Peoples Act, or DRIPA, and that the vote on it would be a matter of confidence, meaning the government would fall if it failed to pass.

“The bill will not be coming in today or this week,” Farnworth said Monday afternoon, adding that when it does it will not be put forward as a confidence measure.

Despite the premier’s comments, a bill becomes a matter of confidence only if the house leader or the minister introducing it says it is, Farnworth said. “The reality when it comes to a confidence vote is it’s what happens in the house.”

Farnworth acknowledged that the government wouldn’t have enough votes on its own to pass the bill. While Eby’s NDP government holds a one-seat majority in the 93-member legislature, Vancouver-Strathcona MLA Joan Phillip has indicated she won’t support suspending sections of DRIPA.

“We recognize that this is an important issue,” said Farnworth. “We know that one of our colleagues, Joan Phillip, Indigenous individual, has significant concerns and has indicated she’s not prepared to support that.”

Plans to amend or suspend sections of DRIPA have been fiercely opposed by First Nations leaders.

At a news conference Friday, Grand Chief Stewart Phillip, president of the Union of BC Indian Chiefs and husband to Joan Phillip, said he wouldn’t speak for his wife but that she opposes amending or suspending DRIPA.

“She is absolutely heartsick about where this issue sits at the time,” Phillip said. “As for the other MLAs, they need to vote their conscience.”

“To say we are frustrated or angry would be an understatement,” said Robert Phillips, First Nations Summit leader, at the same news conference. “This is a historical moment for First Nations and we will not back down.”

The B.C. government passed DRIPA in 2019 unanimously and with celebration, making the province the first to commit to aligning its laws with the 46 articles of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.

Eby, who was attorney general when DRIPA passed, says the need to pause sections of the act arose from a December B.C. Court of Appeal decision in the Gitxaala case about mining claims.

In a 2-1 decision, three Appeal Court justices overturned a B.C. Supreme Court decision and ruled the province had incorporated UNDRIP into its laws through DRIPA and that the province’s “free entry” mineral tenure system, which allows claims to be staked online, was inconsistent with UNDRIP.

The lower court had already found that the system breached the Crown’s duty to consult under the Canadian Constitution and needed to be modernized to allow for consultation with Indigenous nations.

Speaking Monday afternoon, Eby said he still believes sections of DRIPA need to be paused before it is used to strike down more B.C. laws in the courts.

“I believe very firmly that we need to pass either legislation that pauses the effect of the declaration act or that pauses it in order to address the serious litigation risk faced by the province,” he said.

Eby said Joan Phillip’s unwillingness to vote for such legislation has forced the government to reconsider how to move forward. “That obviously changes the math for us, and no one on our team has any interest in sending British Columbians into an election.”

The government is talking with Independent MLAs and hopes that by removing the proposed bill from being a confidence vote they will consider it on its merits rather than a question of whether or not the government should fall, he said.

Trevor Halford, interim leader of the Conservative Party of BC, said he’s not surprised Eby has been forced to back down.

“He blinked because he didn’t have the support of his caucus,” Halford said.

Halford said the Conservative Opposition is unlikely to vote for any bill the government brings forward to suspend or amend DRIPA.

“The only thing we will support is a full repeal of DRIPA, full stop,” Halford said.