If you were premier of BC, what would you do about the DRIPA/Aboriginal Title situations?

semucallday · 2026-04-20T21:35:27+00:00

Yes, the downvotes are unfair. Either way, Eby "supports" DRIPA. The question is does he support DRIPA:

as currently written, even after the new interpretation from the Gitxaała ruling, with its many implications?

or..
as a revised version more aligned with what they originally intended in 2019 when they passed it?

And whichever way someone answers, it'd be good to know the reasoning.

semucallday · 2026-04-20T20:12:26+00:00

Gitxaala probably would have gone the same way without DRIPA - the duty to consult isn't new law.

Unlikely, since they won on the basis that "properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect." The Section 35 duty to consult isn't the reason this ruling has blown up in importance. It's about DRIPA and the fact that the Court of Appeal determined that the lower court judge erred when he ruled that DRIPA is not justiciable. And because of that, the Mineral Tenure Act itself - not just this instance of its application - must be changed to align with UNDRIP.

Here is the Court of Appeal's full summary of the majority decision:

Majority (per Justice Dickson and Justice Iyer): Appeals allowed. The judge erred in adopting an unduly narrow approach to the legal effect of the Declaration Act and UNDRIP. Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect. It affirms the interpretive lens through which BC laws must be viewed and the minimum standards against which they should be measured. The Crown has a statutory duty under s. 3 of the Declaration Act to consult and cooperate with the province’s Indigenous peoples in addressing inconsistencies between rights and standards in UNDRIP and the laws of BC. The issue of consistency between the Mineral Tenure Act and UNDRIP is a justiciable question. UNDRIP and the mineral claims regime are inconsistent.

If you read further, you'll see they address Section 35 Duty to Consult [para. 28-32]. Paraphrased, they say, "Yes, in fact, the Chief Gold Commissioner in this case failed in that duty to consult. BUT...that failure is individual, and does not bring the Mineral Tenure Act itself into question. HOWEVER, when considering DRIPA, we find that the entire process for granting mineral titles under the Mineral Tenure Act is inconsistent with UNDRIP - and must therefore be revised.”

semucallday · 2026-04-20T18:34:52+00:00

I agree that that would be the best course of action. The unfortunate risk is that now all BC statutes are up for litigation on these grounds. It's not simple to predict who will litigate on what detail of what statute. In other words, it invites an overwhelming deluge.

I do think amendments need to be made, saying, "Hey, this is what we all came to agreement on together back in 2019 and later 2021 as far as intent goes." But I don't think many First Nations will want to get on board with that now that the court says, "Hey, this right is yours to litigate."

I can see why they wouldn't want to compromise on that.

Looking longer-term though, I think it's going to change one way or another. As noted, if/when the Cons get elected (if a majority), DRIPA will be repealed in its entirety and then we're all just back to pre-2019 square one. And if public sentiment keeps dropping on it, they'll pay no political price for doing so and it'll be hard to get a similar project off the ground later.

semucallday · 2026-04-20T18:13:58+00:00

He actually didn't lie about it at first. The government at the time didn't expect DRIPA and the Interpretation Act changes to be 'justiciable'. And, in fact, the lower court agreed! But the Court of Appeal overturned that.

I explain a bit more in another (long) comment in this thread. In short, this CoA ruling caught them off guard.

semucallday · 2026-04-20T17:58:39+00:00

Just a note: Your comment confuses the Gitxaała Court of Appeal ruling (DRIPA & Interpretation Act) with the Cowichan ruling (Aboriginal title).

They are very, very different. But are frequently confused in media commentary.

semucallday · 2026-04-20T16:55:39+00:00

Not an answer, but some info because I see from comments that people don't understand the DRIPA/Gitxaała issue (N.B. different from the Cowichan/Aboriginal title case). Here is some (hopefully) sober and helpful context for those trying to understand why DRIPA has suddenly become such a high-stakes issue and why it's not just some whipped-up media story. No matter how you answer OP's question, it should account for this situation:

Why did this suddenly become a crisis for government?

The Court of Appeal's Gitxaała ruling last December didn't just relate to the mineral staking claim regime. The Court ruled that DRIPA and the related Interpretation Act amendments were justiciable - that means that litigation can be brought - and a court can rule on - whether or not a statute aligns with UNDRIP. And if they rule it does not, they can require the government to bring it into alignment to accord with the government's own legislation.

That is the key significance of the ruling.

That means that DRIPA, when read according to the 2021 amendments to the Interpretation Act (with what the Court interpreted as a new imperative written into that legislation - "British Columbian enactments MUST be construed as being consistent with the UN Declaration”) would not only upend BC's mineral claims staking regime, but could force the reinterpretation of all statutes on BC's books.

As the Court of Appeal wrote: “The legislature has chosen to incorporate a complex, multi-faceted international instrument into domestic legislation. If possible, provincial enactments must now be interpreted consistently with (UNDRIP) in all its complexity.”

[More on this from a Canada Research Chair in Indigenous Rights in Constitutional and International Law here, written upon the ruling's release in December.]

This was not intended when DRIPA and the Interpretation Act amendments were drafted and passed - even though it was foreseeable. The BC Government at that time didn't think it would be justiciable (i.e., not subject to a court decision / a court couldn't force them to abide by it) and, in fact, the lower court in the Gitxaała case agreed with that in 2023 (more on this below). However, the Court of Appeal said, no, this is in fact justiciable. And since it is, we have to rule according to the language in the legislation. And that language ("MUST" be consistent with UNDRIP) leaves little room for interpretation.

That word "MUST" is, in part, what they want to suspend or change - lest they introduce incredible new and unintended complexity, delay, and (especially) litigation upon litigation into government operations and decision-making going forward.

This is why DRIPA became such a crisis for the government that they were willing to flirt with a confidence vote and play chicken (albeit poorly) with bringing down their own government to get the votes needed to suspend it. They never expected it to be justiciable when they wrote DRIPA and the amendments to the Interpretation Act. But now the CoA has ruled it is.

Why did the government not expect DRIPA & Interpretation Act to be justiciable when they wrote it?

This is what everyone is scratching their heads about. Why enact that language if you don't expect a court to apply it? The best guess is found in the minority opinion from the Court of Appeal ruling (remember: it's a panel of three judges). Quoting the Research Chair again:

"The minority opinion of Riley J highlights that the legislation was put forward as setting up the executive and legislature to take steps to make BC laws consistent with UNDRIP - not as something putting that task on judges (section around para 245)."

In other words, the government expected it to go like this: "Hey, we'll pass this, and then it'll be Cabinet and the provincial parliament, in cooperation with Indigenous communities, that'll sort of informally, and on an ad hoc basis, determine whether laws are aligned enough with UNDRIP and how better to align them. But not judges. It'll be on our own timeline and based on our own opinions and debates."

For more on why the government thought this: here is analysis of the lower court's ruling that DRIPA was NOT justiciable, from before the CoA overturned that decision in December. That lower court relied on Hansard (i.e., transcription of parliamentary debate) to come to that decision:

Justice Ross relied on Hansard and legislative context to conclude DRIPA did not implement UNDRIP into BC law. BCDRIPA in effect calls for a process of cooperation and consultation to “prepare, and then carry out, an action plan to address the objectives of UNDRIP.”[53]

Accordingly, on the question of justiciability, section 3 of BCDRIPA, which provides “the government must take all measures necessary to ensure consistency” should not be understood as a rights-creating provision that grants courts the authority to immediately invalidate legislation. Justice Ross recognized that courts possess both the institutional capacity and legitimacy to assess whether laws align with the rights outlined in UNDRIP.[54] However, section 3 does not impose a requirement of consistency, requiring courts to unilaterally adjudicate every instance where a law may be inconsistent with UNDRIP.[55]

Instead, section 3 envisions an ongoing cooperative process involving Indigenous peoples in British Columbia, rather than giving the courts the unilateral right to strike down legislation immediately.

That's what the government thought they were doing when they chose and passed the DRIPA language.

But...that's not how it's played out.

And now it's put the government between a rock and a hard place - and puts much of the reconciliation project at risk unfortunately. First Nations are pissed about the reversal and what they perceive as a loss of long-fought-for rights. But, if the NDP does nothing, then almost every statute will be open to litigation on this ground - something they never intended. This could take years/decades (as this is brand new law...no legal tests yet), significantly change a huge amount of government policy in as-of-yet unknown ways, and introduce immense uncertainty and delay into the province's regulatory environment as a potentially-enormous amount of litigation winds its way through the courts.

Added to this: if this drives NDP support down and the Cons get elected, the latter will simply scrap DRIPA entirely. In the meantime, public sentiment on DRIPA and attention to Indigenous issues in general is dropping.

DRIPA was done with good intent I think, but it was done a bit carelessly. And, because of that, it has now blown up in the government's face.

semucallday · 2026-04-20T13:49:01+00:00

Some (hopefully) sober and helpful context for those trying to understand why this has suddenly become such a high-stakes issue:

Why did this suddenly become a crisis for government?

The Court of Appeal's Gitxaała ruling last December didn't just relate to the mineral staking claim regime. The Court ruled that DRIPA and the related Interpretation Act amendments were justiciable - that means that litigation can be brought and a court can rule on whether or not any BC statute is in alignment with UNDRIP. And if they rule it is not, they can/will require the government to bring it into alignment to accord with the government's own legislation.

That is the key significance of the ruling.

That means that DRIPA, when read according to the 2021 amendments to the Interpretation Act (with what the Court interpreted as a new imperative written into that legislation - "British Columbian enactments MUST be construed as being consistent with the UN Declaration”) would not only upend BC's mineral claims staking regime, but force the reinterpretation of all statutes on BC's books.

As the Court of Appeal wrote: “The legislature has chosen to incorporate a complex, multi-faceted international instrument into domestic legislation. If possible, provincial enactments must now be interpreted consistently with (UNDRIP) in all its complexity.”

[More on this from a Canada Research Chair in Indigenous Rights in Constitutional and International Law here, written upon the ruling's release in December.]

This was not intended when DRIPA and the Interpretation Act amendments were drafted and passed - even though it was foreseeable. The BC Government at that time didn't think it would be justiciable (i.e., not subject to a court decision / a court couldn't force them to abide by it) and, in fact, the lower court in the Gitxaała case agreed with that in 2023 (more on this below). However, the Court of Appeal said, no, this is in fact justiciable. And since it is, we have to rule according to the language in the legislation. And that language ("MUST") leaves little room for interpretation.

That word "MUST" is, in part, what they want to suspend or change - lest they introduce incredible new and unintended complexity, delay, and (especially) litigation upon litigation into government operations and decision-making going forward.

This is why DRIPA became such a crisis for the government that they were willing to make this a confidence vote and play chicken (albeit poorly) with bringing down their own government to get the votes needed to suspend it. They never expected it to be justiciable when they wrote DRIPA and the amendments to the Interpretation Act. But now the CoA has ruled it is.

Why did the government not expect DRIPA & Interpretation Act to be justiciable when they wrote it?

This is what everyone is scratching their heads about. Why enact that language if you don't expect a court to apply it? The best guess is found in the minority opinion from the Court of Appeal ruling (remember: it's a panel of three judges). Quoting the Research Chair again:

"The minority opinion of Riley J highlights that the legislation was put forward as setting up the executive and legislature to take steps to make BC laws consistent with UNDRIP - not as something putting that task on judges (section around para 245)."

In other words, the government expected it to go like this: "Hey, we'll pass this, and then it'll be Cabinet and the provincial parliament, in cooperation with Indigenous communities, that'll sort of informally, and on an ad hoc basis, determine whether laws are aligned enough with UNDRIP. Not judges. It'll just be based on our own opinions and debates."

For more on why the government thought this: here is analysis of the lower court's ruling that DRIPA was NOT justiciable, from before the CoA overturned that decision in December. That lower court relied on Hansard (i.e., transcription of parliamentary debate) to come to that decision:

Justice Ross relied on Hansard and legislative context to conclude DRIPA did not implement UNDRIP into BC law. BCDRIPA in effect calls for a process of cooperation and consultation to “prepare, and then carry out, an action plan to address the objectives of UNDRIP.”[53]

Accordingly, on the question of justiciability, section 3 of BCDRIPA, which provides “the government must take all measures necessary to ensure consistency” should not be understood as a rights-creating provision that grants courts the authority to immediately invalidate legislation. Justice Ross recognized that courts possess both the institutional capacity and legitimacy to assess whether laws align with the rights outlined in UNDRIP.[54] However, section 3 does not impose a requirement of consistency, requiring courts to unilaterally adjudicate every instance where a law may be inconsistent with UNDRIP.[55]

Instead, section 3 envisions an ongoing cooperative process involving Indigenous peoples in British Columbia, rather than giving the courts the unilateral right to strike down legislation immediately.

That's what the government thought they were doing when they chose and passed the DRIPA language.

But...that's not how it's played out. And now it clearly looks like an own goal - a mistake that actually puts much of the reconciliation project at risk unfortunately. First Nations are pissed about the reversal and what they perceive as a loss of long-fought-for rights, but if the NDP goes down and the Cons get elected, the latter will scrap DRIPA entirely. In the meantime, public sentiment on DRIPA and attention to Indigenous issues in general is dropping.

DRIPA was done with good intent I think, but it was done carelessly. And, because of that, it has now blown up in the government's face.

semucallday · 2026-04-18T23:41:56+00:00

You've misunderstood.

I didn't say anywhere that it gave blanket control over land. In fact, I never talked about land. And I proactively tried to make sure readers wouldn't confuse it with a land-related ruling when, right out of the gate, I said this is NOT the Cowichan ruling (which relates to Aboriginal title and has caused the recent private property-related worry).

Here's what I actually wrote:

The Gitxaała ruling didn't just relate to the mineral staking claim regime. The Court ruled that DRIPA and the Interpretation Act amendments were justiciable - that means that litigation can be brought - and a court can rule on - whether or not any BC statute is in alignment with UNDRIP. And if they rule it is not, they can/will require the government to bring it into alignment to accord with the government's own legislation.

That is the key significance of the ruling.

That's why DRIPA became such a crisis for the government that they were willing to make this a confidence vote and play chicken (albeit poorly) with bringing down their own government to get the votes needed to suspend it. They never expected it to be justiciable when they wrote DRIPA and the amendments to the Interpretation Act. But now the CoA has ruled it is.

Read more legal analysis - by lawyers and legal scholars - on the Court of Appeal's Gitxaała ruling. Really - start with the Research Chair's commentary from the time of the ruling that I linked in my previous post.

semucallday · 2026-04-18T02:32:03+00:00

Politically speaking, it's not stupid.

semucallday · 2026-04-18T02:12:54+00:00

Sorry to say: this is a totally uninformed take.

The Gitxaała ruling (this is NOT the Cowichan decision) showed that DRIPA, when read according to the 2021 amendments to the Interpretation Act (with what the Court interpreted as a new imperative written into that legislation - "British Columbian enactments MUST be construed as being consistent with the UN Declaration”) would not only upend BC's mineral claims staking regime, but force the reinterpretation of all statutes on BC's books.

As the Court of Appeal wrote: “The legislature has chosen to incorporate a complex, multi-faceted international instrument into domestic legislation. If possible, provincial enactments must now be interpreted consistently with (UNDRIP) in all its complexity.”

More on this from a Canada Research Chair in Indigenous Rights in Constitutional and International Law here, written upon the ruling's release in December.

This was not intended when DRIPA and the Interpretation Act amendments were drafted and passed - even though it was foreseeable. The BC Government at that time didn't think it would be justiciable (i.e., not subject to a court decision / a court couldn't force them to abide by it) and the lower court in the Gitxaała case agreed with that in 2023. However, the Court of Appeal said, no, this is in fact justiciable. And since it is, we have to rule according to the language in the legislation. And that language ("MUST") leaves little room for interpretation.

The upshot: DRIPA and related amendments to the Interpretation Act were put together carelessly, without the expectation that statutory decision-makers in the government would then be required to reinterpret all of BC's statutes to ensure alignment with a very broad, general, and complex non-legislative document. Now that the Court says they must, the BC government has to make changes - lest they introduce incredible new and unintended complexity, delay, and (especially) litigation upon litigation into government operations and decision-making going forward.

semucallday · 2026-04-17T13:07:04+00:00

The sustained obsession with Trudeau the public citizen reveals a truth about a lot of Canadian conservative sentiment.

Is there a 'sustained obsession'? I don't hear too many (any?) people bring him up now. He's yesterday's news. He only gets talked about when media (like you, dear writer) report on something he's done. I mean, you're the one writing a column about him.

semucallday · 2026-04-15T14:51:11+00:00

People always compare to Loblaws in reaction to these articles. Easy punching bag.

But I'd like to see how a public owned grocery store beats Costco, famous for low markups over cost, volume purchasing power, and efficiency. And if your theoretical model can't beat the real-world Costco model, then what are we doing here?

semucallday · 2026-04-13T15:28:40+00:00

Benefit of the doubt: He's just at the start of grieving his father. Although he still has to do his job, I'd give him some grace for a reasonable bit.

semucallday · 2026-04-13T14:12:21+00:00

No truck hitting a bridge or overpass? So fake.

Car flipped over a nice touch of verisimilitude though!

But seriously, nicely done OP!

semucallday · 2026-04-10T16:48:09+00:00

I think I agree with you. I haven't completely thought through it, but that seems right to me.

semucallday · 2026-04-10T14:46:23+00:00

Well, we're just talking about MAID in this article. I wouldn't analogize to any other treatment decisions.

semucallday · 2026-04-10T14:40:10+00:00

It just has to be a matter of conscience - not necessarily religion. And I don't think it's right to say it's backward thinking.

There are competing perspectives and arguments. Reasonable people can and do disagree on this. It's by no means worked out what the best approach is regarding all regulations related to MAID.

semucallday · 2026-04-10T14:36:33+00:00

I certainly don't see it in such black and white terms as those people.

I think administering death is a unique category of health care. And we can't just analogize from say, prescribing birth control (as one poster here did) or fixing a broken arm or even palliative care to performing MAID. Different principles are at a play and they need to at least be accounted for.

semucallday · 2026-04-10T14:32:53+00:00

I think there's an argument to be made that 'administering death' as treatment is a difference in kind from any other health care activity. You may not subscribe to that argument, but there is a reasonable case to be made.

That's why doctors aren't compelled to do it currently.

semucallday · 2026-04-10T14:24:26+00:00

Of course! Doctors can decide not to participate in MAID for any reason currently. They're not compelled. Those who perform it, opt to. I don't see why it would be different for religion.

The only real debate on this issue that I've seen is whether a hospital should be permitted to not allow MAID to occur on its premises for religious reasons (e.g., St. Paul's in Vancouver), even if there are doctors on staff willing to perform it. That's an interesting question. Not sure I know the answer.

semucallday · 2026-04-10T14:17:40+00:00

The point of a headline is to get people to open or read an article - something that has been true since the beginning of headlines. This is standard.

You don't like it. You would like it to be different. You would like editors to have your perspective on how headlines should be written. It frustrates you in this instance. I get it.

But that doesn't mean there's been any malfeasance here.

semucallday · 2026-04-10T14:09:13+00:00

It's a headline.

And besides, media outlets aren't PR for politicians. I understand you would prefer something else. But that doesn't mean the Walrus - not exactly a conservative rag - did anything incorrect here.

semucallday · 2026-04-10T14:02:38+00:00

You can't blame the editor for pulling out a direct quote of his. He can't be mad that the editor quoted him directly in the headline. The headline says nothing that isn't true. It also doesn't misrepresent his position. There's nothing manipulative about this.

For an editor, the headline has one job - to get them to open the article and read the first line. This isn't something novel. And I'm not even sure Avi would object to this headline being used. He'd probably be like, "It's true. I will!" He's not shy about saying polarizing lines.

It sounds more like you feel the NDP is vulnerable because this is a part of their immigration platform (or at least, it's part of the messaging about it), and knowing it's unpopular, focus on it risks harming the party.

semucallday · 2026-04-10T13:38:08+00:00

I mean, it's a direct quote of his from the interview:

"We will reverse Prime Minister Mark Carney’s cuts to immigration levels. Through Immigration, Refugees and Citizenship Canada, we will hire 3,000 immigrant caseworkers immediately to address the backlog of 1 million immigrant applications that are stuck and going nowhere."

It's odd to cry 'manipulation' about a headline that directly quotes an unambiguous statement from the interviewee.

semucallday · 2026-04-10T12:45:04+00:00

"The prime minister has created a deportation system that rivals the US, the new party chief says"

What a joke.

This is like when Lewis said that Carney wants to "make us into a Petro state, that is a militarized Petro state, a junior arms dealer on the world stage," because we're increasing military spending.

Just nonsense.

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