Geoffrey Moyse: B.C.’s DRIPA law is irredeemable and must be scrapped

The B.C. legislature in Victoria. Photo by Chad Hipolito/Postmedia

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At the beginning of May, Tod Stone, a former B.C. cabinet minister and current CEO of the Association for Mineral Exploration, noted the many problems with the province’s Declaration on the Rights of Indigenous Peoples Act (DRIPA), but then claimed that it “has the potential to advance reconciliation in a respectful and meaningful way” (B.C.’s DRIPA Law Should Be Fixed, Not Scrapped, Todd Stone, May 3). This is simply not the case.

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DRIPA, which was passed by the government of former B.C. premier John Horgan in 2019, cannot provide a viable framework for reconciliation in British Columbia, because the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is not a viable framework for reconciliation in an advanced western democracy such as Canada, which already recognizes and affirms Aboriginal and treaty rights in its Constitution.

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The suggestion that UNDRIP ought to be Canada’s reconciliation framework came from the Truth and Reconciliation Commission’s calls to action. As a recommendation, it was seriously flawed.

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Sec. 35 of the Constitution Act, 1982, states, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” The Supreme Court has interpreted this as the proper vehicle for reconciliation in Canada. While Sec. 35 has been criticized, it at least provides a balanced approach to reconciling the pre-existence of Indigenous societies with the imposition of sovereignty by the Crown.

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UNDRIP is inconsistent with Sec. 35 and is contrary to what the Supreme Court has determined to be the constitutional obligations of governments and the rights they are supposed to protect. Governments simply cannot accept UNDRIP as an alternative pathway to reconciliation in the Canadian context.

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Apparently the B.C. government’s view was that it never intended DRIPA to be legally enforceable by the courts, or to cause UNDRIP itself to be the law of the land. Yet in December 2025, the B.C. Court of Appeal disagreed with that interpretation of both DRIPA and Sec. 8.1 of the Interpretation Act, which states that, “Every Act and regulation must be construed as being consistent with the Declaration.”

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The court determined that, “Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect.” This has created enormous levels of legal uncertainty in the province and opened the door for First Nations to litigate, and potentially upend, any provincial laws if they so choose.

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Even American First Nations have cited DRIPA and UNDRIP in legal challenges to provincial government decisions, including the government’s approval of the Eskey Creek mine in northern B.C.

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Recently, the Business Council of British Columbia surveyed its members and found that 98 per cent of them are “very concerned” about DRIPA “applying to all laws in the province. The same share of respondents also said that they do not believe DRIPA is living up to its original promise of creating greater investment certainty in B.C.”