Indigenous reconciliation was considered Job One when the NDP unseated the B.C. Liberal government in 2017. They felt they were on the side of the angels then, convinced their cause of bringing First Nations fully into 21st century public decision-making was just.

Eight years in, it’s gone sideways well beyond the initial warnings that it would be intensely challenging and take years.

It’s been a series of arcane and complicated developments that played out in courtrooms and in private negotiations.

They are grinding away at the NDP government like a glacier.

The Current Crisis

This week, Eby said his stance on the latest crisis to arise — which is already intensely unpopular with First Nations leaders — was “non-negotiable.”

He wanted to rewrite parts of the law driving reconciliation (Declaration on the Rights of Indigenous Peoples Act) to weaken it.

Then, after a conference call with the ranking Indigenous leadership on Thursday, he pitched the idea of suspending portions for three years.

The Court Rulings

It’s to buy time for his government to try to win a crucial court appeal that could take years.

That stems from a Court of Appeal decision on a case from two First Nations that found B.C.’s mineral claims regime violates DRIPA. It said the stringent requirements for consultation apply even to staking claims, that routine first step in the mining industry. Needing permission to stake claims (thousands are filed each year) is unworkable and creates huge uncertainty, the industry says, at a time when the government is hoping for major new developments.

Running alongside that argument is the fallout from the Cowichan decision, where Aboriginal title in a Richmond area was found to supersede private titles in the hands of public bodies.

Thursday’s Showdown

Thursday’s showdown came as polls suggest people think the NDP is preoccupied with reconciliation, and support is waning. Eby told the media after the conference call that the need to pause was very unfortunate, but “we have to do something.” A pause is the “least invasive way we could think of doing it.”

He acknowledged the idea of rewriting DRIPA was totally unacceptable and “profoundly offensive” to the chiefs.

“Nobody is excited about this process, certainly I’m not, and First Nations leadership are not.”
— Premier David Eby

Legal and Political Tangle

The immediate concerns are the two separate decisions in the B.C. Supreme Court and the B.C. Court of Appeal that created all the anxiety. He railed against them earlier, to the point where legal bodies warned him to tone it down. His government is negotiating with the Cowichan, as ordered by the judge after she made the title ruling. But there are multiple appeals, and it could take years to reach a conclusion.

Eby has issued numerous reassurances and even put up $150 million in loan guarantees to calm real estate fears. But that didn’t stop Richmond Mayor Malcolm Brodie from asking the Cowichan Nation this week to “renounce” any claims on private land and do so in a legally binding way.

Background Controversies

Running in the background to the current reconciliation dilemmas are earlier controversies. There was the skimpy, low-profile consultation on the idea of co-management of public lands with First Nations that eventually collapsed.

There was a major title and land management agreement with the shíshálh Nation on the Sunshine Coast that was withheld until the 2024 election concluded.

And there was a court declaration cementing the Haida Nation’s title over Haida Gwaii. The earlier work was done in the open, but the application for a formal irrevocable declaration, which was considered historic, was supported by the government with no public notice or explanation.

When the Indigenous rights recognition bill was introduced in 2019, the stress was on delivering “economic and legal certainty and predictability. … A path forward, creating clarity and predictability.”

No one is using those descriptions today, and it’s not clear if anyone has ideas on how to get back on that path.

A leaked transcript of a meeting between Indigenous leaders and British Columbia Premier David Eby, about his plan to suspend the province’s Declaration on the Rights of Indigenous Peoples Act, or DRIPA, shows them accusing him of “absolute betrayal” and colonialism.

Speaker after speaker in the 17,000-word transcript of Thursday’s meeting, obtained by The Canadian Press, criticize Eby’s handling of DRIPA, which he says needs to be suspended for up to three years.

DRIPA is at the centre of a legal and political storm after being cited by First Nations in two landmark court cases last year, including an appeal ruling that says the act should be “properly interpreted” to incorporate the UN Declaration on the Rights of Indigenous Peoples into B.C. laws “with immediate legal effect.”

The transcript provided by a person in attendance, on the condition that no First Nations leaders are identified, shows one speaker telling Eby he has insisted on “fracturing the relationship between First Nations and B.C.” by saying this week that changing DRIPA was “non-negotiable.”

Another tells Eby the premise of the meeting is “disingenuous.”

Eby’s Position

The transcript shows Eby starting the meeting by telling attendees the so-called Gitxaala ruling by the B.C. Court of Appeal in December found the UN declaration had been implemented by the province “as a whole.”

He says the ruling, which had created “huge legal uncertainty,” effectively meant the province would “need to eat the whole elephant” of UNDRIP all at once and across all its laws, which the government lacked the staff and political capital to do.

Eby says the government proposed to introduce legislation to implement the suspension “the week after next,” and that the pause of up to three years is to give time for the Supreme Court of Canada to rule on the government’s appeal in the Gitxaala case, which centred on mining rules.

The transcript shows the meeting lasted almost two hours, until about noon Thursday. Ninety minutes later, Eby held a news conference to announce the suspension proposal.

Sections Facing Suspension

At the conference, Eby declined to specify which sections of legislation would be suspended.

But the transcript and a document provided by The Canadian Press’ source in the meeting suggest they consist of four sections of DRIPA, plus a section of the Interpretation Act, which describes how B.C.’s laws must be interpreted.

The Interpretation Act section facing suspension says “every act and regulation must be construed as being consistent with” DRIPA, while a section of DRIPA to be paused says nothing should be construed as delaying its application to B.C.’s laws.

The section saying the act’s purpose is to “affirm the application” of DRIPA to B.C.’s laws is also to be paused, as is a section saying the government must take all measures necessary to ensure laws are consistent with it.

The final section of DRIPA to be suspended relates to how progress on its goals is reported.

The Proposal

In the transcript, Eby acknowledges the government’s previous plan to amend DRIPA has been “completely opposed” by the First Nations.

He says the alternative proposal of a pause is to find another solution, which he says “is really, bluntly, unavoidable.”

“Now, it’s my hope, it’s cabinet’s hope, it’s the government’s hope, that this is a better solution to address the legal risk we’re facing, as well as the concerns that you’ve raised with us.”
— Premier David Eby

First Nations Response

The response in the transcript is far from enthusiastic.

“I don’t understand why you insist on fracturing the relationship between First Nations and B.C. by saying these things publicly?” one respondent says, referring to Eby’s remarks on changes to DRIPA being non-negotiable.

“It really shook my confidence in you as the premier and your ability to work with us on something so important as DRIPA,” they say, adding that Eby is “not there anymore” as a partner.

One leader tells Eby he is making “rash” decisions, another tells of their “extreme feeling of disappointment in the steps taken,” and another tells the premier his government’s behaviour “smacks of colonialism.”

One attendee accuses Eby of “Indian giving,” and says that after finally seeing “some light” in the way First Nations are treated by government, Eby’s moves “close the door.”

Another attendee tells of “an extreme feeling of disappointment in the steps taken.”

“And this act that you’re doing now … these feelings and this sentiment that you’re putting forward is the same sentiment of colonization, of piece by piece taking our rights, our purpose, away from us,” they say.

At least one leader expresses doubt about the wisdom of opposing the government, considering the Opposition B.C. Conservatives are “running on repealing DRIPA.”

They tell other leaders that they “cannot afford to not give a damn about” who is premier, and suggest that fellow chiefs are “overestimating” their power.

Late in the meeting, one leader tries to inject a light moment, referring back to Eby’s elephant analogy.

“Eating an elephant, it can be done with help,” they say. “We could fry it, we could boil it … We could barbecue it. That lasagna I ate yesterday said I’m a family of four.”

Eby told the subsequent news conference that enacting the suspension would represent a confidence vote for his government.
— Premier David Eby

He said the suspension was “least invasive way that we could think of” to mitigate DRIPA’s possible unintended impacts across the province’s legal system.