How Would Limits to Court Access Impact Reconciliation in B.C.?
CBABC responds to B.C. government’s intention to amend DRIPA
The courts play an important role in advancing Reconciliation in British Columbia, particularly where legal accountability is at issue.
However, Premier David Eby, KC signaled in January that the B.C. government intends to amend the Declaration on the Rights of Indigenous Peoples Act (DRIPA) in ways that could narrow the role of the courts. His public comments indicated that the responsibility for ensuring the consistency of provincial laws with UN Declaration on the Rights of Indigenous Peoples (UNDRIP) should rest with government-to-government processes involving the province, the federal government and Indigenous governments.
Through public statements, letters and media interviews, the Canadian Bar Association, BC Branch has outlined our position that the Province should not restrict the courts’ role in matters arising under DRIPA, including judicial review and statutory interpretation. CBABC also wrote to the Premier in early March to discuss the potential impacts of the proposed amendments and present recommendations.
Threats to the Rule of Law
The government has not yet shared further details on its planned amendments, but any change that limits access to the courts would fundamentally undermine the rule of law. When negotiations reach an impasse, the courts are essential to ensuring legal accountability. For organizations and Indigenous governing bodies seeking clarity, the courts review questions of consistency between UNDRIP and B.C. law. These roles are features of a society that upholds the rule of law, and any attempt to circumvent the courts puts a valued democratic principle at risk.
Risks to Reconciliation
Unanimously supported in the legislature, DRIPA was developed with Indigenous governing bodies and Indigenous legal experts. Its passage marked a meaningful step in strengthening Crown-Indigenous relations.
For this reason, amendments that restrict judicial oversight or narrow DRIPA’s commitments could compromise B.C.’s commitments to Truth and Reconciliation and rights respecting governance. Such changes risk destabilizing B.C.’s Reconciliation framework, departing from the Declaration Act Action Plan and eroding trust between Indigenous governing bodies and the Crown.
Inconsistency with Supreme Court of Canada Jurisprudence
Decades of Supreme Court of Canada decisions have affirmed Aboriginal title, the constitutional protections of Aboriginal rights, the Crown’s obligation to pursue Reconciliation and act honourably, the duty to consult and accommodate, and the importance of good-faith negotiations.
DRIPA reflects this jurisprudence by creating mechanisms to align B.C. laws with UNDRIP. Amending DRIPA in ways that restrict judicial review or diminish its protections would depart from these principles, and for Indigenous Peoples, undermines this jurisprudence. Attempts to weaken the law could limit or block the courts’ role in resolving questions of legal accountability, increasing the risk of conflict and litigation.
What Must Happen Next
British Columbia demonstrated historic leadership in advancing DRIPA. Amending the law in ways that narrow its current protections or restrict judicial interpretation would raise concerns about the durability of that leadership and the province’s Reconciliation commitments.
In our letter to the Premier, CBABC requested clarity about any proposed amendments and emphasized that draft legislation must be publicly released for meaningful consultation and co-developed with Indigenous governing bodies and Indigenous legal experts.
A transparent and collaborative process would help ensure that DRIPA continues to guide British Columbia’s path to Reconciliation.
