Despite a vocal effort to insulate itself from U.S. influence, British Columbia may have ironically exposed itself to a situation in which Americans will have veto power over its laws. Under B.C.'s 2019 Declaration on the Rights of Indigenous Peoples Act (DRIPA), which adopted the terms of the UN Declaration on the Rights of Indigenous Peoples, Indigenous groups are empowered to 'own, use, develop and control' any provincial land they once occupied.
U.S. Tribes Invoke DRIPA
Now, two U.S.-based Indigenous groups are arguing that DRIPA should give them jurisdiction over B.C. government decisions, as their traditional territory includes pieces of what is now Canada. The Southeast Alaska Indigenous Transboundary Commission (SAITC), a coalition of 14 Alaska Tribal Nations, is leading a legal challenge arguing that DRIPA gives them sway over B.C.'s ability to approve mining projects along the B.C./Alaska border.
'Our Tribes have never surrendered or abandoned their claims to their traditional territories on the Canadian side of the border,' reads a November statement by SAITC. Meanwhile, the Washington State-based Sinixt Confederacy is pledging to mount a similar challenge regarding a planned magnesium mine near Osoyoos, B.C.
'The Sinixt were driven off their traditional territory in British Columbia by colonization, and forced to live south of the Canada-US border,' wrote the group in a September statement. 'But this does not change the fact that the land now called British Columbia is the Sinixt's ancestral home.'
Premier Eby's Response
B.C. Premier David Eby dismissed both efforts. In comments published this week by the Vancouver Sun, he said their citation of DRIPA was just the latest element of a legal fight that has previously leaned mainly on a 2021 Supreme Court decision ruling that non-citizens can indeed obtain status under Canadian law as 'Aboriginal peoples of Canada.'
'The American tribes in Alaska and in Washington state have been doing this for years,' he said. If DRIPA is different, it is because the law has proved uniquely powerful at overriding B.C. laws.
DRIPA's Power Over B.C. Laws
DRIPA states plainly that 'Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.' And it was Eby himself who, in 2021, wrote an amendment into B.C. law declaring that 'Every Act and regulation must be construed as being consistent with the Declaration.'
All of this is why, last December, a ruling by the B.C. Appeals Court struck down one of the province's oldest laws, the Mineral Tenure Act, as being out of step with DRIPA. That same decision would also declare that DRIPA effectively superseded all other B.C. laws, and was 'the interpretive lens through which B.C. laws must be viewed and the minimum standards against which they should be measured.'
