On November 28, 2019, through the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”), British Columbia formally adopted the standards outlined in the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). Section 4 of DRIPA mandates British Columbia “prepare and implement an action plan to achieve the objectives of [UNDRIP].”
This is headline news. Prior to the targeted engagement that led to the development of the Action Plan, there were decades of unremitting work undertaken by advocates, leaders, matriarchs, patriarchs, lawyers, political leaders, and the unnamed persons upon whose shoulders the Action Plan stands. The Action Plan itself represents the culmination of countless meetings, round tables, collaborations, submissions, stalemates, and negotiations. Woven throughout is the overarching goal of “advanc[ing] reconciliation in tangible and measurable ways” — we are hopeful that it will do just that.
The Action Plan
The Action Plan collectively identifies goals and outcomes that form the vision for implementing UNDRIP in British Columbia. It has 89 priority actions — tangible steps that will advance this work in key areas over the next five years — and is divided into four themes:
- Self-Determination and Inherent Right of Self-Government;
- Title and Rights of Indigenous Peoples;
- Ending Indigenous-specific Racism and Discrimination; and
- Social, Cultural, and Economic Well-being.
These themes are divided into goals, outcomes, and actions — each narrowing in specificity and focus. The goals draw from UNDRIP; the outcomes envision the particularized realization of the goals in British Columbia; and the actions articulate the way the outcomes will come about, allocating responsibility to specific parties and players.
The Action Plan notes that implementation will be approached in a “distinctions-based” manner, in consultation and cooperation with Indigenous peoples. Flowing from DRIPA and the Action Plan, British Columbia will provide annual reports, a means by which progress on these goals, outcomes, and actions can be publicly and critically reviewed.
Setting a New Course
The Action Plan embodies the boldness of long-lasting hope. It is further confirmation that UNDRIP has full application to the laws of BC and builds on past efforts that had yet to be fully realized. The Action Plan enhances government accountability and sets a new course for UNDRIP implementation, with a focus on a public, coherent, and transparent process. Its goals, outcomes, and actions provide practical and pointed tools that advocates and clients can employ in furtherance of individualized rights.
Towards a Legally Plural Province
The Action Plan may be even more than a plan. Throughout the Action Plan is a subtle—but very much present—advancement towards a legally plural province.
Quite simply, legal pluralism is the co-existence of two or more legal frameworks. Legal pluralism rejects the fallacy that the law is, always was, and always will be, one thing. Rather, it reveals that the law can be comprised of various unique and necessary pieces that work in harmony with each other.
The Action Plan has the potential to convert a view of legal pluralism (and, therefore, co-jurisdiction) into reality in BC. It is rooted in various shared understandings including “the affirmation, consistent with [UNDRIP], that upholding the human rights of Indigenous Peoples includes recognizing that within Canada there are multiple legal orders, including Indigenous laws and legal orders with distinct roles, responsibilities, and authorities.” The Action Plan seeks to provide Indigenous peoples across the province with the necessary space to strengthen the application of Indigenous legal orders in the Canadian legal system.
Further, the goal of the first theme, Self-Determination and Inherent Right of Self-Government, is for “Indigenous Peoples [to] exercise and have full enjoyment of their rights to self-determination and self-government, including developing, maintaining and implementing their own institutions, laws, governing bodies, and political, economic and social structures related to Indigenous communities.” This means that Indigenous peoples, through their chosen governments, will have open, respectful, and productive working relationships with British Columbia that “recognize legal pluralism and reflect cooperative federalism.”
In Recovering Canada, scholar John Borrows writes that “[m]uch of the history of Canadian law concerning Aboriginal peoples is often seen as conflictual, a contest between ideas rooted in First Nations, English, American, and international legal regimes in which one source of law must become ascendant.” Professor Borrows conscientiously rejects this approach. He cites R v Van der Peet,  2 SCR 507 (“Van der Peet”), the seminal case establishing the common law test for an “Aboriginal right,” in which the Supreme Court of Canada opined that “the essence of aboriginal rights is in their bridging of aboriginal and non-aboriginal cultures,” and where the only “morally and politically defensible conception of aboriginal rights,” incorporates both Indigenous and non-Indigenous legal perspectives. Professor Borrows advocates for a dismantling of a view of law where various originations of the law compete with one another. Nearly 30 years after Van der Peet, the Action Plan marks a tangible step in pursuit of that goal.
For Indigenous communities in British Columbia who have been tirelessly pushing for change, we remain, with you, resolutely inspired and distinctly motivated to ensure that the Action Plan will be a sustained and effective leap towards Indigenous rights, legal pluralism, and reconciliation.