When the BC Government unanimously passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA) on November 26, 2019, First Nations in the province were excited and anticipated a new era. A new era of change of the old way of doing business and finally feeling like the United Nations Universal Declaration on the Rights of Indigenous Peoples would be implemented.
These expectations have been very short lived as the Government processes totally ignore what was intended in their new law and are not building relationships with First Nations in the province.
The government has tabled two bills in the legislature-Bills 17 – an Act to amend the Clean Energy Act and Bill 22 – An Act to amend the Mental Health Act without any consultation and cooperation, in fact without any notifications to First Nations. And I ask, what has changed in this supposed new era when the government still thinks it can do whatever it wants without cooperation or consent with First Nations. Paternalism in its worst form.
The Clean Energy Act is imperative to the self determination of First Nations economic development, the right to development and right to own, use, manage and utilize our own resources as outlined in UNDRIP. Bill 17 takes away any opportunity for First Nations to develop clean energy for economic development as it does away with self-sufficiency which means BC can buy power from other jurisdictions and not have development of clean energy sources from First Nations and their partners. They are not encouraging business in BC, rather, they are maintaining BC Hydro/Fortis monopolies. So much for entrepreneurship and the rebounding of the BC economy.
In response to our opposition to Bill 17 and the process they undertook, we hear the same old tired arguments that state that Independent Power Producers power is too expensive. Not once have they responded to the fact that they needed to consult and cooperate with First Nations on proposed legislation. They just raise red herring issues like the price of power yet BC Hydro hasn’t done a call for power for many years to see what IPP’s can produce power for now when prices of equipment like solar panels and turbines have come right down in price.
First Nations, Clean Energy BC and other organization do not agree with the way BC and BC Hydro have characterized the price of power produced by IPP’s and blaming them for a $16 billion price tag being charged to customers. BC Hydro had a report done that was called Zapped. Zapped was a political document designed to make news headlines by alleging an over spending of $16 billion dollars over 20 years, but it was based on inaccurate information. Clean Energy BC response report used the facts and figures from BC Hydro’s data to show why this report was wrong.
But in raising this controversial issue on the price of Independent Power Producers energy, they forget their commitments under DRIPA, Reconciliation and the Truth and Reconciliation Calls to Action. DRIPA clearly states what action government must take and the honour of the Crown is at stake by not following their own law:
Purposes of Act
2 The purposes of this Act are as follows:
(a)to affirm the application of the Declaration to the laws of British Columbia;
(b)to contribute to the implementation of the Declaration;
(c)to support the affirmation of, and develop relationships with, Indigenous governing bodies.
Measures to align laws with Declaration
3 In consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.
(emphasis added)
The BC government has violated the purposes of their own Act and their commitment to take all measure necessary to ensure their law are consistent with UNDRIP. By not doing so they are alienating First Nations as opposed to strengthening relations with them.
Bill 17 would look totally different had the government of BC actually sat down with all the First Nations in BC and asked them their priorities are for clean energy and looked seriously at UNDRIP together to determine how the Clean Energy Act needed to be amended. This should have been the priority of the BC Government for legislative changes.
DRIPA talks about an action plan that will achieve the objectives of the Declaration. In my conversations with the Leadership Council the province had a non-indigenous lawyer draft up an action plan that was given to the leadership council to respond to. This is totally contrary to the intent of DRIPA that things should be done in cooperation. I take this to mean collaborative development on very important things like the Action. If I were on the Leadership Council, I would have sent the action plan back to the government and told them it was an unacceptable process and it needed to be developed together. This is old school way of doing things.
I was at several political meetings where I raised this with Minister Scott Fraser and his Deputy Minister Doug Caul and they assured me that First Nations in the province would be consulted in the development of the Action Plan. The BC government in its required legislative annual report (p. 16) to the legislature on DRIPA mentions they talked to the 3 organizations, advisory council on indigenous women and their modern treaty partners and no one else yet. That leaves 194 more First Nations to have input into the action plan- If they do things properly.
I am also informed by the Leadership Council that the province has insisted on a separate legislative agenda from the Action plan which again is not what DRIPA says to do. Interestingly enough in their annual report the only law that is mentioned is the Child, Family and Community Services Act and only as changes were needed to align with the new Federal Law.
Bill 22 was also tabled in the legislature without First Nations input. First Nations, Directors, organizations and others have been raising concerns that the amendments would have dangerous impacts on the health, safety and rights of youth. Concerns that they are adding more legal mechanisms to detain our youth instead of trying to provide the right kind of help is very troubling. The Act would allow health authorities to detain a youth for up to 7 days “to stabilize them and prepare a plan that includes parents. The government again trying to determine what is best for First Nations without asking us what is needed. Tabling one bill without involving First Nations could be considered to be a mistake, but table two bills is a disturbing pattern.
I also work on the Joint Working Group on Heritage Conservation and we have been trying to make changes to policy and law for the protection of sacred and heritage sites. I asked the BC representatives what the process is on negotiating decision making agreements- both joint and consent before decisions as outlined in section 7 of DRIPA. I was told that we can’t do that until laws are amended to allow for that as right now only Ministers can make those kinds of decisions. Totally opposite of what was expected-that we could just negotiate those agreements
So what does this all add up to? The BC Government is not following their own laws, preferring to look only at their needs and make excuses as to why they are doing what they are supposed to do under DRIPA.
They can say they need an action plan first but that is just an excuse not to implement DRIPA.
If the government wants credibility with First Nations, they need to be transparent and accountable instead of tabling legislation without informing us and not even asking what we think needs to be changed to be consistent with UNDRIP.
These kinds of actions are unacceptable. First Nations leadership need to be speaking out loudly against these kinds of processes that BC is undertaking. A few have, but we need more voices so that the government and people of BC know that things are not happening the way they are supposed to be when this bill was unanimously passed by the entire legislature.
In their annual report on DRIPA, BC states
“to achieve lasting reconciliation and embody transformative change, the province must acknowledge and learn from past wrongs and chart a future together based on trust, mutual respect and recognition and respect for indigenous human rights…Reconciliation is hard work. It does not begin or end with a single decision, event or moment. To make progress on this important work, we must remain committed to pursuing common ground and take effective action together.” (p. 16)
Transformative change sounds awesome but it is not happening. The province must take its own words and learn from doing things badly in the past, just as they continue to do so or we will never chart a future together. Taking action together and not unilaterally is what is required. It is time for the province to change its ways of doing things and do better or we will never move forward together. First Nations expect better.
References:
1. Declaration on the Rights of Indigenous peoples Act https://www.bclaws.ca/civix/document/id/complete/statreg/19044
2. Bill 17: Clean Energy Amendment Act https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceed...
3. Bill 22: Mental Health Amendment Act https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceed...
4. Zapped report: https://www2.gov.bc.ca/assets/gov/farming-natural-resources-and-industry...
5. Clean Energy BC Response to Zapped: https://www.cleanenergybc.org/wp-content/uploads/2019/03/CEBC-CEBC-Respo...
6. Legislated Annual Report on DRIPA https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/ind...