UN Declaration Becomes Law in BC
The Declaration on the Rights of Indigenous Peoples Act (Bill 41) became law in BC on November 28, 2019. The legislation received unanimous support in the legislature, five weeks after being introduced on October 24, 2019. Although Bill 41 was debated extensively, the Act passed unanimously with no amendments.
The legislation has four key pillars:
- Ensuring that the laws of BC are consistent with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)
- An action plan, in consultation with Indigenous peoples, for government to achieve the objectives of UNDRIP
- Annual reporting by government on the progress that has been made toward implementing these measures
- Agreements with Indigenous governing bodies
The introduction of Bill 41 was supported by AME in an op-ed co-written by Kendra Johnston and Chad Norman Day. As the similar federal Bill C-262 was not approved by the Senate prior to the federal election, BC’s Bill 41 is the first legislation enacted in Canada to explicitly tie together governance and implementation of UNDRIP.
What This Means to AME Members
In the short term, the BC government does not anticipate any significant changes to the regulatory framework for mineral exploration and development.
The Province of British Columbia notes that collaboration between EMPR and Indigenous nations is “well established, and has supported progress toward the Province’s commitment to implement the UN Declaration”. The province gives examples such as Economic and Community Development Agreements that provide resource revenue sharing between the province and Indigenous groups; the BC Regional Mining Alliance aimed at promoting mineral exploration and development in BC; and collaborative permitting processes as examples. Minister Scott Fraser has noted that “in many ways, the business community is ahead of government” in working collaboratively with First Nations.
Furthermore, the new legislation does not change how the Ministry of Energy, Mines and Petroleum Resources (EMPR) consults with First Nations or how operational decisions are made. Scott Fraser, BC’s Minister of Indigenous Relations and Reconciliation, has stressed that the law is “not a switch that will change every statute and process”; rather, it is described as a catalyst to enable future legislative changes.
The primary concerns over the bill may be related to references to free, prior and informed consent. For example, Article 28 states that Indigenous peoples have the rights to redress for lands, territories and resources which have been occupied or used without their “free, prior and informed consent”, and Article 32 calls for “free and informed consent” prior to the approval of projects affecting lands or territories and other resources. However, both Premier John Horgan and Minister Scott Fraser have noted that the legislation does not provide Indigenous nations a veto over natural resource projects. Legally, consent under the Environmental Assessment Act is only required where a treaty or other comprehensive agreement containing a consent requirement is in place. However, it can be reasonably expected that the number of agreements with consent requirements may rise over time. It remains to be seen, though, how differing views of UNDRIP might be reconciled under the Act, particularly with regard to overlapping traditional territories or changes to legislation.
In summary, AME remains cautiously optimistic that this legislation and its implementation will ultimately lead to a clear, transparent and timely project review process and in turn attract capital needed to develop natural resources.
What Members Can Do
AME continues to encourage members to engage local Indigenous communities early and often and to work proactively and continuously with Indigenous groups to build mutually beneficial relationships. AME will be releasing an Early Engagement Decision Tree tool to help inform engagement with local Indigenous groups in early 2020.
- Text of Bill 41 – 2019: Declaration on the Rights of Indigenous Peoples Act
- AME News Release, October 25, 2019: AME Responds to Introduction of UNDRIP
- Op-ed by Kendra Johnston and Chad Norman Day in The Globe and Mail
BC Government factsheets:
- Mineral exploration and mining: UNDRIP Legislation Factsheet
- Environmental assessment: UNDRIP Legislation Factsheet
- Blakes bulletin
- Fasken bulletin and Update on Bill 41