Thursday, March 18, 2021

Skeena MLA Ellis Ross raises themes of UNDRIP and consultation process as part of debate on Bill 11

The British Columbia Legislature has introduced discussion on plans for changes to the Court of Appeal Act, currently working its way through government business in this session as Bill 11.

As part of the debate from Wednesday in the Legislature, Skeena MLA Ellis Ross raised a number of themes  for discussion with Attorney General David Eby who is steering the bill through the Legislature, speaking towards how the Appeal Act proposals will move forward. 

Much of Mr. Ross's commentary and line of questions on the day was related to how the province plans to engage in consultation with the First Nations of the province as part of their commitments through UNDRIP, a topic that he has spoke of on a number of previous occasions in  past Legislature sessions

As part of his contribution to the debate of Wednesday, Mr. Ross framed some of this viewpoint through his previous service as Chief Councillor for the Haisla Nation.

When we were debating this back in 2017, in estimates and the UNDRIP bill itself, I did get some broad, general answers that didn't actually answer the question that I was asking. 

The only answer I really got was from the Attorney General, who at the end of his comments said that the issues would be viewed, under UNDRIP, through the lens of section 35. That was the only comment that I heard through estimates, from all of the different ministers, that made any sense. 

And that's what I was looking for, trying to reconcile section 35, with all of its case law — 300 court cases and counting, I guess — and trying to reconcile that with a broad, general statement that came from the United Nations. 

And so in terms of the consultation, normally this type of bill would have been adequate to consult the organization you refer to, which is the justice council. 

As chief councillor back in my band, if I ever heard about this happening, it wouldn't have occurred to me to stand up and protect my rights and title, especially the consultation and accommodation of it. 

But this is all changed with the NDP government's introduction of Bill 41. 

And so not really trying to redefine any of these clauses, but I just want to know: how does the government decide — and this is a follow-up to my colleague's question — on which bills to consult First Nations with? 

And how do they decide which body they consult and accommodate with, in terms of these types of legislations?

In Reply, Minister Eby outlined how the government's engagement with Indigenous people in the provinces is that of a process that continues to evolve in the spirit of UNDRIP when it comes to the proposed legislation. 

That however, was a positioning of the government that raised a few more concerns for the Skeena MLA.

That's quite troubling ... to hear that this is an evolving process, because according to the bill, the government actually commits to working with the Indigenous governing body. 

And  the definition of Indigenous governing body ... Under the definitions of Bill 41, the NDP government's own bill:  "the definition of 'Indigenous governing body' means an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982." 

The Justice Council, the Assembly of First Nations, the Union of B.C. Chiefs they don't hold rights and title. 

Rights and title are held on behalf of communities. 

And so it only stands to reason that if you go  to consult — and this does lead to the bill that we're talking about today — if you're going to consult on Aboriginal rights and title issues or issues related to rights and title, it only stands to reason that the government consults rights and title holders. 

So I'm just trying to reconcile what the government said when they introduced UNDRIP and how they reconciled that with the case law in section 35 of the constitution. 

So I want to know if the Attorney General and I've heard him say before: "It's my opinion" or "It's my perspective." I'm really asking: does the government have any intention of living up to its own promises within Bill 41 in relation to consultation with rights and title holders of B.C., in terms of First Nations?

Towards that process, Minister Eby observed that he doesn't believe that the issue is a partisan one and that the contribution of the members would be a welcome one; as for the path ahead he outlined what will be guiding him through the path ahead to move the legislation forward.

The answer is yes. I will continue to try to do my best to work in partnership with Indigenous organizations and uphold both the spirit and the letter of our own law, as well as our intentions around our relationship with Indigenous Peoples. I thank the member for his feedback.

That led the Skeena MLA to a secondary range of questions related to consultation and if the government explored how long it will take for First Nations  to prepare for their own court cases which may end in the Court of Appeal process. 

The question was used by Mr. Eby to highlight some of the many elements that have to be considered towards such engagement.

If the member is raising a separate issue, about, and one that I am inclined to agree with him about…. 

That is that court processes for recognition of rights and title are lengthy, expensive and not ideal. They're artificially — and intentionally artificially — adverse in structure and colonial in structure. 

I'm inclined to agree with all those things. 

Part of the bill that he raised questions about, about UNDRIP, is trying to find different ways of working together in the province on really tough and difficult questions like rights and title, where there are overlapping claims or other challenges, and less fraught disputes — how we work together around: what does environmental assessment look like in the province? 

How do we ensure that we're operating as a government in a way that's respectful of the fact that Indigenous people have been here since time immemorial? 

So you know, I don't pretend to have all the answers, and I don't know that anybody here does. 

But we're trying to set a path, where we want to go, how we want to get there. For this bill that's in front of the House today, that involved specific engagement with Indigenous people in the province.

On that theme, the Skeena MLA agreed to disagree towards the Minister's interpreation. 

As the near half hour debate rolled towards a conclusion, for now, Mr. Ross raised one final note of interest for the Minister and government to give some thought towards.

One final point here in terms of the consultation. Number one, we know the government does not want to consult with the rights and title holders. They would prefer to consult with Indigenous organizations that don't have rights and title. 

And Yet the government is actually breaching its own bill, Bill 41 on the UNDRIP. 

And what I'll leave this House with is that basically when we're talking about the consultation with true rights and title holders, the Attorney General mentioned the justice council. 

My point was, number one, is the government living up to its own commitments in terms of consulting First Nations on every single piece of legislation that passes through this House. 

The answer is no. 

The second one is that the Crown is actually the government, is actually going to representative — and I use that word loosely — representative organizations to get that check box of consultation. 

So the Justice Council — who we are, who the Justice Council is and what they do — they "challenge approaches that contribute to the growing overrepresentation of First Nations children and youth in the care of government and First Nations men and women in incarceration." 

They also "productively engage with the government to advance effective strategies that can achieve better outcomes for Indigenous people in the justice system." 

There's no mention of rights and title. 

And Not this bill specifically, but every single bill so far, the government has admitted they have not consulted with rights and title holders. 

And Not only are they breaching the case law under section 35 of the Constitution of Canada, they're breaching their own UNDRIP bill, including article 40, which says: "Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. 

Two points. One is government made a commitment to consult First Nation title holders on every single piece of legislation that passes through this House. They're not doing it. Number two is, if the idea is reconciliation, then procedural changes to something like Court of Appeal Acts do matter. They will matter to Nuchatlaht coming up in the title court case.

My only point was, has this been communicated to the true rights and title holders?"

From all of those themes, the Minister thanked the Skeena MLA for his views, noting how he would take them under advisement and reflect on them toward how the government may do a better job towards the areas of note.

The full exchange makes for a fairly good tutorial on how the two largest parties in the Legislature are viewing the rollout of the UNDRIP process and the consultation approach that is to be included as part of it.

You can review the full discussion from the Wednesday session from the Legislature archive starting at the 3:15 PM mark, the video presentation starts at the same point through the House video for the afternoon session.

For more notes on the Skeena MLA's previous themes in the Legislature see our archive page here.


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