British Columbia's decision to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was described as a shot-in-the-dark experiment by former Premier John Horgan, according to a recent analysis by columnist Vaughn Palmer. The move, which began as a promise in 2016 when Horgan was leader of the NDP Opposition, was influenced by Indigenous leaders Stewart Phillip, Terry Teegee, and others who convinced him that UNDRIP was the necessary path forward.
Horgan's Reflections on UNDRIP
In his posthumous memoir, Horgan recalled telling Indigenous leaders that he was a big champion of treaties, to which they responded, 'Well, you're a real dummy because treaties are not working for us.' Despite initial resistance within the NDP caucus, Horgan eventually persuaded his party, arguing that changing the existing approach was essential to progress with Indigenous peoples.
The promise to implement UNDRIP was made just months before the 2017 provincial election, though it was not a decisive issue in a campaign dominated by 16 years of B.C. Liberal government. The New Democrats, forming a coalition with the Greens, lacked a strong mandate but proceeded to introduce the Declaration on the Rights of Indigenous Peoples Act (DRIPA) in their second year of government.
Collaborative Process and Legislative Scrutiny
Horgan emphasized that DRIPA was not pulled out of a hat but resulted from a collaborative process with the Assembly of First Nations, the Union of B.C. Indian Chiefs, and the First Nations Leadership Council. However, during the November 2019 debate on DRIPA, B.C. Liberal critic Mike de Jong raised pointed questions about the bill's drafting process.
De Jong, a former attorney general, inquired whether the final text had been vetted by legislative counsel in the attorney general's ministry. Indigenous Relations Minister Scott Fraser confirmed that in-house counsel had reviewed the bill. De Jong then asked two follow-up questions: 'Was the bill red-tagged? Was it yellow-tagged?' A red tag would indicate deep concerns, while a yellow tag would signify lesser but significant issues.
Fraser refused to answer, citing solicitor-client privilege. This left open the possibility that government lawyers had reservations about a bill partially drafted and imposed from outside. Despite these concerns, de Jong and his B.C. Liberal colleagues decided to support DRIPA, which passed unanimously.
Amendments to the Interpretation Act
Two years later, de Jong returned to the legislative fray as the New Democrats, again guided by Indigenous leaders, amended the Interpretation Act to require that all provincial laws 'must' be interpreted consistently with the UN Declaration. This move further cemented UNDRIP's influence on B.C. legislation.
Palmer's article underscores the tension between aspirational goals and practical implementation, noting that the NDP's approach involved both wishful thinking and a reluctance to fully disclose legal concerns during the legislative process.
