UNDRIP In British Columbia: Introduction Of Bill 41

On October 24, 2019, the British Columbia (BC) government introduced Bill 41, Declaration on the Rights of Indigenous Peoples Act, in the BC legislature.1 Bill 41, which was co-developed with the First Nations Leadership Council and other Indigenous organizations, fulfills the BC government's commitment to fully implement the Universal Declaration on the Rights of Indigenous Peoples (UNDRIP) into BC legislation.2

The BC government has stated that Bill 41 "is a critical step towards true and lasting reconciliation."3 While this underlying objective is laudable, Bill 41's attempt to import an international "declaration" directly into Canadian law will create new challenges in the BC government's efforts to further reconciliation.

Challenges with Directly Implementing UNDRIP

The creation and adoption of UNDRIP, and the embrace of the principles therein, represent progress for the recognition and protection of Indigenous rights globally. In this context, UNDRIP provides an important benchmark in a world that has too often harmed, mistreated, and exploited Indigenous peoples.4

While UNDRIP reflects critical elements of Indigenous rights, it was designed as a guide rather than a specific legal instrument to be directly implemented as law. As formulated, it is not directly compatible or implementable at the national level. Such incompatibilities are particularly evident in the Canadian context, given Canada's established and sophisticated Indigenous rights regime, unequaled by any nation state on the globe.

Since the adoption of the Constitution Act, 1982,5 Canada and the provinces have been working to further reconciliation with Indigenous peoples. Through decades of litigation over section 35, the Canadian Indigenous rights regime has evolved, and continues to evolve, to provide increasing clarity and certainty for Indigenous and non-Indigenous peoples alike.

This evolution is the result of a tremendous investment of time and resources by Indigenous peoples, governments, the judicial system, and Canadians generally.

As a blunt and deliberately high-level document, UNDRIP is not reflective of Canada's nuanced and sophisticated constitutional and legal framework, particularly in respect of Canada's unique constitutional protection of Indigenous rights in section 35. By simply incorporating UNDRIP in its entirety into BC's legal system, Bill 41 introduces substantial uncertainty into BC's pursuit of true and lasting reconciliation.

Challenges...