FORSETH: BC Conservatives face a rough ride repealing DRIPA

Paul Forseth is a commentator from BC and served as a member of Parliament from 1993 until 2006.The BC Conservatives made it a central part of their election platform — Strong Leadership for Serious Times — to repeal the Declaration on the Rights of Indigenous Peoples Act (DRIPA). It was their boldest promise. Within hours of the election victory, interviewers pressed for a timeline, and Premier-elect Lorne Doerkson confirmed it would happen during the spring session of the BC Legislature.Doerkson has a rodeo background. He is about to get a rough political ride as he climbs on the DRIPA-repeal bronco. His repeal promise immediately brought condemnation from some indigenous leaders. Grand Chief Stewart Phillip — president of the Union of BC Indian Chiefs — warned that indigenous peoples will resist the Conservative government's plan to repeal DRIPA. “We’re not going to stand idly by while the government rips it up,” Phillip said. “That’s a declaration of war.” “I think they know and understand that following through on their promise to rip up DRIPA is going to be very, very contentious,” he said.The Conservatives have made a promise and can’t back down on this one. Some Aboriginal groups are being alarmist, saying there is going to be violence. The public is frustrated and has had enough of the blackmail. The Conservatives face an uphill battle, as radicals know their gravy train is under serious review. Confrontations may follow as the next phase unfolds. However, unlike before, most voters are not on the Aboriginal side this time around.A recent survey was astoundingly one-sided. “The BC Conservatives have promised to repeal the act. Do you support DRIPA being repealed? Yes, repeal it: 85%. No, keep it: 8%. Not sure: 8%.”DRIPA was co-developed with indigenous peoples and requires BC to align all of its laws with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). All political parties passed it unanimously in 2019. BC MLAs did not fully understand what they had done.When the BC NDP government passed DRIPA, it explicitly said that a future court should not use it to strike down other provincial laws. “There will be no immediate effect on laws,” said then-indigenous relations minister Scott Fraser. “We are not creating a bill here that is designed to have our laws struck down.” How wrong he was. So what political point was the NDP trying to score with symbolic legislation that had no real force or effect? Was the law mere window dressing and image-making for appearances' sake, driven by insincere motives toward indigenous peoples?When critics questioned the basics, the government blithely said DRIPA did not bestow any new privileges, create any new rights, or bring the UN Declaration into legal force and effect. The NDP government was either lying, or ignorant and incompetent.Fast forward almost seven years, and the things the New Democrats said wouldn't happen did happen. The BC Court of Appeal struck down the Mineral Tenures Act, saying the lack of consultation and accommodation with indigenous peoples about the “mineral claims-staking system” violated DRIPA. The decision signalled that the duly passed law was real. The courts could not decide which statute was merely for show, and which was substantive and “justiciable”. The court ruled that DRIPA obligations are legally binding and enforceable, rather than non-binding and merely aspirational..Former NDP premier David Eby reacted by claiming the ruling was judicial overreach into the sensitive issue of indigenous reconciliation, which he said elected governments in the legislature should handle alone. In his backtracking comments, he said that “it is absolutely crucial that it is British Columbians through their elected representatives that remain in control of this process, not the courts.” However, he could not explain why the government passed DRIPA if it did not mean what it clearly said.The self-satisfied, if somewhat arrogant New Democrats had hailed themselves as “the leader in the world” on indigenous rights when they crafted DRIPA in 2019. It promised to “take all measures necessary to ensure the laws of BC are consistent with the declaration,” including requiring free, prior, and informed consent of indigenous peoples on projects, removing colonial language from laws, rooting out systemic racism, and enshrining a duty to consult and accommodate indigenous communities in government decisions. But it would all take time, the government said. It would happen over many years with annual reports and no set deadline. In fact, it appeared to be a cynical tactic to gain short-term political support from the Aboriginal community, leaving the real consequences for some far-off day in the future.The government sought the political benefits of an ambitious DRIPA, while publicly promoting a limited interpretation of the real consequences. The facts created a binding framework for aligning provincial laws with UNDRIP. However, the NDP knew they lacked a political mandate for DRIPA, and the public would say it went too far. So the NDP resorted to crass political subterfuge.The court's ruling effectively declared open season on using DRIPA as a hammer to smash any BC law, opening the floodgates to court challenges, judicial rulings, appeals, and counter-appeals.Eby then stepped into the political mud, triggering a caucus revolt. He said, “BC may appeal the mineral tenure case all the way to the Supreme Court of Canada, or it could amend DRIPA.” “I think it is just as likely, or perhaps more likely, that we would proceed with amendments to provide clarity around what was clearly intended when we introduced this legislation.”The premier had been warned publicly that DRIPA had set an impossible standard for government to ensure every statute and regulation that affected indigenous people was consistent with DRIPA. However, the NDP's penchant for image-making and ingratiation outweighed wise nation-building and social responsibility.The premier planned to ameliorate provisions of DRIPA. However, he backed off to avoid a collision course with his caucus and indigenous leaders and dropped plans to change DRIPA. The climbdown followed a tense emergency caucus meeting where more than 10 NDP MLAs lined up against the plan to suspend parts of DRIPA for up to three years. indigenous NDP MLA Joan Phillip told colleagues she could not vote for the proposed suspension. Several other caucus members signalled they might not vote for it. The First Nations Leadership Council issued a blunt statement saying Eby had “broken the trust”, as any unilateral pause on DRIPA obligations would reverse a cornerstone of the province's reconciliation framework.However, as far back as September 2024, the BC Conservatives had asserted that DRIPA was not fixable and should be repealed. The policy was often mentioned during the BC Conservative leadership race. The party later reaffirmed this intention in its election platform.Specifically, the platform said:Protect Private Property Rights: The NDP has created unnecessary uncertainty in its approach to Aboriginal title litigation. British Columbians shouldn’t need a constitutional lawyer to know whether they own their home.The BC Conservatives pledged to protect private property rights by repealing DRIPA, repealing section 8.1 of the Interpretation Act and the NDP’s litigation directives, and restoring the section 35 constitutional framework. They also promised a Property Rights Defence Act to uphold the Land Title Act’s validity for all fee-simple properties in the province. They would bring in an Aboriginal Title Transparency Act, which would publish maps and information on active claims, negotiations, legal actions and agreements affecting public or private land before they become binding. Finally, they vowed to restore equal access to Crown land and provincial parks, guaranteeing in law that British Columbians can reach Crown land, beaches and backcountry, subject only to legitimate conservation and safety requirements..Build lasting relationships with First Nations. The NDP have divided us and conducted dealings in secret. They have forfeited the trust of British Columbians and set back reconciliation. Conservative Party of BC believes that reconciliation should create greater opportunity and prosperity, not greater uncertainty and division. It requires mutual respect, transparency and responsibilities and duties that are understood and fulfilled.Strong relationships with First Nations are also essential to our economic future:We will honour constitutional rights and respect the duty to consult and accommodate where required. We will pursue reconciliation through practical cooperation, clear and fair treaty agreements and economic opportunities that benefit First Nations communities and the province. Revenue sharing, ownership and meaningful participation will help us work toward real reconciliation by helping communities shape development and share in growing prosperity.The contrast between the NDP and Conservatives was very clear on leading platform promises. DRIPA is a measure about nation-building and the constitutional administration of obligations to indigenous peoples. It threatens the very base of our market economy by taking unworkable, naïve notice of UNDRIP. It undermines the free enterprise market economy for everyone.Premier-elect Doerkson said his new Conservative government will repeal DRIPA “as soon as we can, as the legislation has not worked in this province and caused more problems of great legal uncertainty”.However, repeal likely won't end lawsuits. Repealing DRIPA will not necessarily avoid the uncertainty that has affected industry and investment in BC since the law was passed, because indigenous peoples still rely on Section 35 of the Constitution. Notably, the Pender Harbour and Area Residents Association has an active court case asserting that DRIPA is unconstitutional.Section 35 of the Constitution Act, 1982 states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” These constitutional rights can include: Aboriginal land title. Hunting, fishing, and harvesting rights. Rights arising from historical and modern treaties. Certain self-government rights.Section 35 is part of Canada's Constitution, and the BC Legislature cannot simply repeal it. However, DRIPA and Section 35 work together, like two different layers of law. Section 35 recognizes existing treaty rights. BC's legislative implementation framework is DRIPA, an enabling provincial statute.The practical consequences include land-use decisions, natural resources, indigenous participation in government decisions, and Aboriginal title and property disputes. The key legal distinction is that Section 35 exists independently of, and above, DRIPA. Without DRIPA, Section 35 remains in effect..Why does this matter to ordinary homeowners? Consider a Richmond, BC homeowner. A family purchases a property with an ordinary registered fee-simple title. Years later, an indigenous nation establishes an Aboriginal title claim over the territory — Cowichan Tribes v. Canada. Two distinct legal interests now exist: the homeowner's registered private property interest and the indigenous nation's constitutionally protected Aboriginal title interest in the same land.Section 35 protects established Aboriginal title. It does not, by itself, automatically cancel the homeowner's title. The courts must address the legal relationship between the competing interests. The Cowichan court decision in Richmond, BC, illustrates just how complicated and undefined those competing rights can become.DRIPA adds another layer, because it directs the interpretation and development of provincial laws in accordance with the international UNDRIP. This is why homeowners, banks, municipalities, and developers have been concerned about legal certainty. If control or ownership of a particular property is unclear, the property's equity value can become worthless if it cannot freely participate in the normal real estate market. Banks might not provide a mortgage for a property if a sales market cannot secure true ownership and market value.How can Canada recognize and protect indigenous peoples' historic rights and Aboriginal title while also providing certainty and protection for people who lawfully purchased private property under Canada's existing land-title system? Indigenous peoples have constitutionally protected rights that cannot simply be ignored. Homeowners have legitimate interests in the security of their registered property. Banks need reliable mortgage security. Governments need clear rules for land-use decisions. Courts need workable legal principles to resolve conflicts. These interests must be reconciled through clear laws, negotiated agreements, and constitutional principles.Other governments have endorsed UNDRIP, developed action plans and consulted indigenous peoples. But BC went much further by creating a provincial legislative framework that expressly aligns laws and shares statutory decision-making authority. However, the overreaction by BC indigenous leaders to the idea of repeal is misplaced, as Aboriginal groups in all other provinces are not in turmoil without such legislation. Across Canada, negotiations on projects are ongoing, and partnerships are being created without such provincial statutes.BC was the first jurisdiction in Canada to enact legislation specifically establishing a framework for implementing UNDRIP. The Northwest Territories followed in 2023, but with a different legislative structure. BC is particularly significant because of the potential interaction among indigenous self-determination, constitutional Aboriginal title, private property ownership, provincial legislative authority, shared government decision-making, and judicial enforcement of UNDRIP.Put simply, the central question is: How far can British Columbia change its laws and decision-making processes to give effect to the rights in UNDRIP, particularly indigenous self-government and free, prior, and informed consent, without creating uncertainty about how existing laws and constitutional rights operate?Resolving Aboriginal rights and title should be done through a renewed approach to negotiating treaties. Where agreement cannot be reached, courts should determine contested Aboriginal title claims rather than separate recognition agreements outside the treaty process..British Columbians should also be prepared for their government to defend the public interest in court. The previous NDP government too often avoided difficult public debates, instead allowing major negotiations to proceed behind closed doors. Some agreements remain secret.The 2026 BC provincial election demonstrated that voters are willing to engage with difficult questions when given the opportunity. The incoming government should trust the public with all the facts, explain its decisions, and stand behind them. Disagreement is no excuse for secrecy, and threats of confrontation should not determine public policy.Elections BC is scheduled to return the certifying electoral writs on November 18. The MLAs will be sworn in the following day, and Doerkson will name his cabinet on November 20.My overall assessmentThe NDP have changeable philosophical roots, memories of Marxism, employing the politics of fear, envy, resentment, and social theft, wrapped in the mantras of compassion. Consequently, the rootless can easily succumb to changing political social fads to affirm their progressiveness. Therefore, it was understandable that the NDP would produce DRIPA, which will be difficult to unwind socially, as capacity creates its own demand. Once there is an opening, expectations have no end.The new Conservative government faces a choice between two approaches to implementing its commitment:Bare repeal: Repeal DRIPA first and deal with the legal, political, and social consequences afterward as they naturally arise.Negotiated repeal and replacement: Try to negotiate a deal first, then repeal DRIPA afterward as part of a managed transition.The second approach limits the unanswered questions about the transition, although it would require genuine negotiation and could not guarantee indigenous peoples' agreement.The essential test is whether the government can demonstrate that it is changing the legislative framework without offending the underlying constitutional relationship.The most consequential question may not be whether DRIPA survives. It is whether British Columbia can establish a durable system of indigenous–provincial relations that survives successive governments, provides certainty to the business sector, respects everyone’s rights, and avoids recurring confrontation. That is a much larger challenge than merely repealing a provincial law.Our democratic safeguard is not simply the ability to remove a government after it has acted. It is the ability to understand what a government intends to do before it exercises its legislative power. That is the standard voters should demand of every government, regardless of political label. Governments are elected to govern on behalf of everyone, and not to decide how much of the truth the public is ready to hear.Paul Forseth is a commentator from BC and served as a member of Parliament from 1993 until 2006.

FORSETH: BC Conservatives face a rough ride repealing DRIPA

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