Vaughn Palmer: B.C. premier upset courts accepted his use of the word 'must'

Premier David Eby. Photo by Government of British Columbia

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VICTORIA — Premier David Eby says the province has to suspend or amend B.C. Declaration on the Rights of Indigenous Peoples Act to head off the legal risks of a far-reaching court decision on the legislation.

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One of the biggest impacts is on statutory decision makers and other senior public servants whose job it is to apply provincial laws and regulations on land use, resources and other government programs.

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Those officials are now subject to the B.C. Court of Appeal’s finding that provincial laws and regulations must be interpreted according to the principles of the UN Declaration on the Rights of Indigenous Peoples.

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“We have statutory decision-makers throughout government in a whole array of fields from the resource world to permitting and licensing,” Eby told reporters this week.

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“We have to be able to provide instructions to them about the policies that they need to deal with, and how to interpret the legislation that we have charged them to apply when they’re doing their work.

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“We’re talking about tens of thousands of people across the province that do this work in various ways,” the premier continued, extrapolating from the court ruling that overturned the province’s mineral claims staking regime.

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To my knowledge, it was the first time that the premier has addressed the spillover effect on the senior echelons of the public service from last December’s Court of Appeal decision.

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The statement was not without its ironies, given what Eby said — and didn’t say — back in 2021, when he introduced an amendment to the Interpretation Act that figured prominently in the court decision. The amendment said that every B.C. Act and regulation “must be construed as being consistent with the UN Declaration.”

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The B.C. Court of Appeal cited that passage in finding that the Act and its elder sibling, the Declaration Act, “incorporates the UN Declaration into the positive law of B.C. with immediate effect.”

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The court observed that the language of the Interpretation Act “is imperative: British Columbian enactments MUST be construed as being consistent with the UN Declaration.” (The court’s emphasis.)

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In enacting that wording two years after passing the Declaration Act in 2019, the legislature’s intention was unmistakable, the court found.

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“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.”

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David Eby acknowledged as much when introducing the change to the Interpretation Act in his capacity as attorney general back in November 2021.

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The amendment “underscores the importance of consistency with the UN Declaration on the Rights of Indigenous Peoples when there are questions about the interpretation of provincial acts and regulations.”