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Legislating UNDRIP

Richard Farthing-Nichol & Merrell-Ann Phare  |   February 2020

BC River_BCGov.jpg

Photo: Government of BC

On November 26, 2019, British Columbia made history by becoming the first jurisdiction in Canada to pass legislation implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Although the full impact of the Declaration on the Rights of Indigenous Peoples Act (DRIPA) will not be known for some time, it is likely to have significant legal and political implications for Crown-Indigenous relations in BC. In addition to requiring the provincial government to ensure BC laws are consistent with UNDRIP, DRIPA authorizes provincial ministers to enter into agreements with Indigenous governments to share statutory decision-making power. This decision-making agreement provision, section 7 of the Act, can be leveraged by Indigenous governments to push for co-governance in their key priority areas. In the context of water, section 7 can serve as the basis for advancing unrealized water co-governance opportunities made possible under the 2016 Water Sustainability Act (WSA). This includes three significant opportunities: environmental flow needs, groundwater licensing, and water sustainability plans.

Environmental flow needs, which refer to the volume and timing of water flow required for the proper functioning of aquatic ecosystems, play a prominent role in determining water management decisions under the WSA. Environmental flow needs are crucial to maintaining a healthy fishery. Fishing is an integral component of many Indigenous Nations’ culture in BC and the right to fish for food, social, and ceremonial purposes is a legally protected Aboriginal and treaty right under the Constitution. Agreements advanced under section 7 could establish co-governance decision-making tables to set environmental flow thresholds. These tables would help ensure Indigenous knowledge and values are play a central role in decision-making.

A significant change introduced by the WSA was a new licensing regime for groundwater users. This early stage of implementation (groundwater users are still being brought online) provides an opportunity to build co-governance processes from the ground up. Agreements under section 7 could establish regional co-governance tables that have the statutory authority to make licensing decisions. Co-governance with Indigenous Nations would help ensure sustainable water licensing that protects traditional uses and rights.

The WSA introduced water sustainability plans (WSPs) as a new tool to enhance local water governance and management at the watershed-scale. While WSPs leave the door open for higher levels of collaboration and shared governance, they are ultimately embedded in provincial law and unable to adequately account for Indigenous laws and rights. They can, however, advance robust conceptions of Indigenous laws and rights, including shared authority, by building new institutions and decision-making processes. Co-governance tables are crucial to ensure that this happens by leading the development of WSPs or by operating in parallel with WSPs as a guarantor of Indigenous laws and rights. Indigenous Nations can leverage section 7 to strike agreements that create such tables.

These are just three of many opportunities for co-governance agreements that are possible under DRIPA. The legislation provides authority to provincial ministers to enter into such agreements, but it does not compel them to do so, nor does it define the content of these agreements. Indigenous Nations, therefore, have an opportunity to set the tone and drive these conversations forward according to their needs.

There are misconceptions and uncertainties surrounding UNDRIP, as evidenced by the nearly ten years it took Canada to endorse the declaration and the failure of Bill C-262, proposed federal UNDRIP legislation, to make it through Parliament prior to the 2019 federal election. Yet the national conversation is ongoing. BC is the first but will almost certainly not be the last Canadian jurisdiction to legislate UNDRIP. Implementation of DRIPA will be watched closely across the country.

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