Written By David Bursey, Sharon Singh, Radha Curpen and Tegan Heywood

On 4 October 2022, the Government of British Columbia released its policy guidance entitled Interim Approach to Implement the Requirements of Section 3 of the Declaration on the Rights of Indigenous Peoples Act (Interim Approach). This guidance offers insight into the government thinking on this high-profile legislative initiative—touted by the province as "world-leading."

The Declaration Act Secretariat (Secretariat) developed the Interim Approach in consultation and cooperation with Indigenous leadership and aims to provide every ministry and sector of government with best practices and processes for working with Indigenous peoples on the development of provincial laws and policies. The Secretariat was established earlier this year to assist with cross-government coordination, as the province undertakes the task of aligning provincial legislation with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Interim Approach is the first outcome from the Secretariat.

UNDRIP and DRIPA—A Brief Overview

UNDRIP was adopted by the General Assembly of the United Nations in September 2007 and endorsed by Canada in 2016.

UNDRIP is a declaration—not a treaty or a convention. It consists of 46 articles that declare basic standards for the rights of Indigenous peoples around the world. UNDRIP is a guidance document that sets standards and principles for government actions across various legislative areas, including education, employment, health, language, culture and resource development, among others. The standards and principles in UNDRIP must be interpreted in the Canadian context to determine how they may be applied into Canadian law—a process that will take considerable time.

British Columbia enacted the Declaration on the Rights of Indigenous Peoples Act (DRIPA) in November 2019 to affirm the application of UNDRIP to the laws of British Columbia and to contribute to the implementation of its principles in the province. The federal government enacted similar legislation—the United Nations Declaration on the Rights of Indigenous Peoples Act—in June 2021. 

Our blog, British Columbia's UNDRIP Legislation—A Framework to Advance Reconciliation, gives a more in-depth an overview of DRIPA.

The Purpose of the Interim Approach

Section 3 of DRIPA established the legislative requirement that the provincial government, in consultation with the Indigenous peoples in British Columbia, "take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration."

The Interim Approach elaborates on the section 3 commitment by offering guidance on "best practices for working with Indigenous Peoples on the development of provincial laws and policies, which advance Indigenous rights." The Province also explains that the Interim Approach gives "every ministry and sector of government with clear, transparent processes for how they work together with Indigenous peoples in developing provincial laws, policies and practices, as required under the Declaration Act."

The Secretariat is responsible for supporting the Interim Approach across the government agencies and assisting with the various measures for government agencies to include Indigenous peoples in policy and legislative development.

The Interim Approach

The Interim Approach outlines five points in the policy and legislative development process where involvement of Indigenous peoples takes place: 

1. Initial policy exploration—to identify the problem statement and priorities, as well as the implications for Indigenous peoples and their rights.
2. Development of a request for decision—that is informed by the policy exploration work and clarifies the policies areas, effects on Indigenous peoples and expected legislative timeline.
3. Development of a request for legislation—that identifies the proposed contents of the legislation and the policy rationale.
4. Legislative drafting—undertaken by legislative counsel working under the direction of a directing official. This step does not involve co-development with Indigenous peoples, but consultation drafts may be shared.
5. The parliamentary process—once a Bill has been tabled for debate in the legislature, Indigenous people may be involved in meetings and briefings, as well as legislative committee hearings or other public processes.

The approach to engagement is flexible, and may include a range of measures from meetings to workshops and collaborating with Indigenous advocacy organizations. Approaches to consultation and cooperation may also be informed by existing commitments, treaties or agreements, the level of interest expressed by Indigenous groups and the subject matter of the policy or legislation itself. A "distinctions-based" approach is required so that the specific rights, interests, priorities and concerns of Indigenous peoples are acknowledged and respected throughout the engagement process.

The Interim Approach does not presume that Indigenous peoples will choose to be involved. Deciding who should be involved in the consultation process may involve seeking guidance from Indigenous partners and subject matter experts or seeking clarity on how to engage diverse voices. If engagement occur at this first step, ministries must consider how the consultation will continue throughout the development of the policy and legislation.

Implications for Provincial Legislation and Policy

The Interim Approach continues the Government of British Columbia's practice to involve Indigenous peoples in the development of provincial policy and legislation. Including Indigenous peoples at the early stages of legislative development seeks to understand the implications and resolve issues related to reconciling provincial law with Indigenous rights.  

The concept of "co-development" of policy and legislative initiatives is still in its infancy in British Columbia and Canada, and will continue to encounter a learning curve. In particular, a threshold question that will require careful thought on every initiative is: Which Indigenous peoples or organizations should be involved?

British Columbia is home to many Indigenous peoples with differing histories, interests and perspectives. Understanding and reflecting that diversity in interest will require considerable commitment, work and understanding. Above all, it will require substantial resources of time, expertise and money from both government and Indigenous peoples that are consulted.  

The Interim Approach—by its very name—stresses that the approach is interim and will be adjusted by the Secretariat as more experience is gained. The Secretariat will have a central role to guide the government agencies on this path, as well as the Indigenous Legal Relations Solicitors Unit with the Ministry of the Attorney General, as well as the ministry-specific counsel. 

The British Columbia experience is at the leading edge in Canada. Undoubtedly, the British Columbia experience will be watched closely and will inform other initiatives related to implementation of UNDRIP principles, including the federal initiative under the United Nations Declaration on the Rights of Indigenous Peoples Act.

For more information on the Government of British Columbia's Interim Approach, please contact the authors of this blog or a member of the Bennett Jones Aboriginal Law group.