B.C. Releases Action Plan to Implement UNDRIP With New Commitment to Modernize Mineral Tenure Act
The British Columbia government recently unveiled its finalized Declaration on the Rights of Indigenous Peoples Act Action Plan (the “Action Plan”) to support the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). The Action Plan details 89 actions to advance the rights of Indigenous peoples in the province from 2022 to 2027, and was developed pursuant to B.C.’s Declaration on the Rights of Indigenous Peoples Act (the “Declaration Act”).
The themes and goals of the Action Plan are effectively the same as the Draft Action Plan for Consultation (“Draft Action Plan”), although there have been some changes to the desired outcomes and specific actions. Some of the most notable new action items added include but are not limited to:
- Modernizing the Mineral Tenure Act in consultation and cooperation with First Nations and First Nations organizations;
- Identifying policy or legislative reforms supporting Indigenous water stewardship, including shared decision making; and
- Co-developing policies, programs and initiatives that address cumulative effects.
The timing of the Mineral Tenure Act review is unclear. This review will undoubtedly include a significant focus on the claim registration system which grants mineral rights upon registration. This system does not require consultation with Indigenous peoples prior to registration, but consultation is required for subsequent permitting relating to exploration and development activities. The system is currently the subject of a legal challenge by a First Nation in B.C. The First Nation is alleging that this process is inconsistent with UNDRIP and the honour of the Crown, and is seeking a declaration that B.C. is required to consult and cooperate with them to ensure the laws relating to mineral titles within their Aboriginal title lands are consistent with UNDRIP.
The Action Plan includes 89 actions across 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 wellbeing.
The highlights of each of these themes is detailed below. For more background on the Draft Action Plan, please see our blog post available here.
- Self-determination and inherent right to self-government
These measures aim to ensure that “Indigenous peoples 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”. The Action Plan adds four new desired outcomes in this theme that were not in the Draft Action Plan. This most notably includes "Indigenous Peoples have the necessary legal space to strengthen the application of their Indigenous Laws and legal orders in various areas not adequately addressed through the Canadian legal system”, although there are no additional action items that have been added or changed with respect to this goal.
Some of the key actions under this theme are as follows, each of which was included in the Draft Action Plan:
- Establishing a new institution in partnership with the Government of Canada that provides supports to First Nations on nation and governance rebuilding, and boundary resolution in accordance with First Nations laws, customs, and traditions (1.1);
- Moving away from short-term transactional agreements to co-developing long-term agreements with Indigenous groups that support reconciliation, self-determination, decision making, and economic independence (1.2);
- Using sections 6 and 7 of the Declaration Act to complete government-to-government agreements that recognize Indigenous self-government and self-determination (1.3);
- Co-developing new distinctions-based fiscal relationships that support the operation of Indigenous governments (1.4);
- Co-developing new distinctions-based policy frameworks for resource revenue-sharing and other fiscal mechanisms (1.5); and
- Supporting inclusive regional governance by advancing First Nations participation in regional district boards (1.11).
The Action Plan includes some changes in the action items relating to K-12 education and Indigenous post-secondary educational opportunities and initiatives in comparison to the Draft Action Plan. The Action Plan also removed the following action:
Enhancing treaty implementation infrastructure for effective and fully resourced implementation of treaty responsibilities, including a comprehensive approach to educating public servants about treaty rights and obligations.
It appears that this was removed because the Province is instead addressing this issue through a new government-to-government Shared Priorities Framework with eight modern treaty nations that was released in March 2022. The province expresses its commitment to timely, effective, and fully-resourced implementation of modern treaties. The Shared Priorities Framework advances three outcomes:
- Comprehensive organizational and policy changes in the public service to ensure a timely and resourced whole-of-government approach to treaty implementation;
- Appropriate fiscal arrangements to fulfill treaty rights and obligations; and
- Meaningful involvement of modern treaty nations in legislative and policy initiatives.
2. Title and rights of Indigenous peoples
These measures seek to ensure that “Indigenous peoples exercise and have full enjoyment of their inherent rights, including the rights of First Nations to own, use, develop and control lands and resources within their territories in B.C.”.
The Action Plan indicates that the Province recognizes the “need to shift from patterns of litigation, and expensive and slow negotiations about title and rights, to cooperative implementation through effective government-to-government relationships”. The Action Plan adds two additional goals that were not in the Draft Action Plan:
- “Indigenous Peoples have meaningful and sufficient access to abundant and healthy traditional foods and have peaceful enjoyment of their harvesting rights”; and
- “First Nations exercise their right to determine and develop priorities and strategies for the development, use and/or stewardship of their traditional territories and other resources”.
Some of the key actions in this area are as follows, each of which was included in the Draft Action Plan (but in some cases with modifications):
- Establishing a Secretariat dedicated to ensuring that legislation is consistent with the Declaration Act and is developed in consultation and cooperation with Indigenous peoples (2.1);
- Finalizing the Draft Principles that Guide the Province of British Columbia’s Relationship with Indigenous Peoples (2.2);
- Providing guidelines to legal counsel of the Ministry of the Attorney General on the conduct of civil litigation on the rights of Indigenous peoples (2.3);
- Negotiating joint decision-making and consent agreements, and making the legislative amendments required to enable these agreements (2.4);
- Co-developing mechanisms to ensure that the minimum standards of UNDRIP are applied in the implementation of treaties and other agreements with First Nations (2.5);
- Co-developing strategic policies and programs to ensure collaboration on stewardship of land, resources, and the environment (2.6);
- Collaborating with First Nations on sustainable water management and identify legislative reforms supporting First Nations water stewardship and shared decision-making (2.7);
- Collaborating with Indigenous partners on conservation and biodiversity, including the protection of species at risk (2.8); and
- Collaborating to develop and implement CleanBC and the Climate Preparedness and Adaptation Strategy to support clean economic opportunities for Indigenous peoples (2.12).
The Action Plan notably adds an action item relating to modernizing the Mineral Tenure Act in consultation and cooperation with First Nations and First Nations organizations (2.14). There are no details on what this modernization may entail. The mineral tenure regime is currently the subject of a judicial review by the Gitxaala First Nation, which alleges that mineral claims were granted in breach of the duty to consult and that the granting of mineral claims without their consent is a violation of UNDRIP. They have also requested a declaration requiring the B.C. government to consult with Gitxaala (as well as other Indigenous peoples) about measures necessary to bring the Mineral Tenure Regime into compliance with UNDRIP.
The Action Plan also includes notable wording changes to some of the action items in the Draft Action Plan, including:
- identifying “policy or legislative reforms supporting Indigenous water stewardship, including shared decision making” (2.7); and
- new language in the environmental stewardship action item to stipulate that the policies, programs, and initiatives will address cumulative effects and respect Indigenous knowledge. The action item also states that “[t]his will be achieved through collaborative stewardship forums, guardian programs, land use planning initiatives, and other innovative and evolving partnerships that support integrated land and resource management” (2.6).
The explicit reference to cumulative effects is likely a result of the enhanced focus on cumulative effects following the significant Yahey decision. For further information on this decisions, please see our blog post here.
- Ending Indigenous-specific racism and discrimination
The actions in this area aim to ensure that “Indigenous peoples fully express and exercise their distinct rights, and enjoy living in B.C. without interpersonal, systemic and institutional interference, oppression or other inequities associated with Indigenous-specific racism and discrimination, wherever they reside.”
The Action Plan includes two new desired outcomes in this area that were not in the Draft Action Plan:
- “Indigenous knowledge, laws and legal orders are affirmed and recognized as part of decision-making”; and
- “Indigenous learners feel welcomed, respected and comfortable learning and being Indigenous in schools and other educational institutions.”
Some of the key actions in this area are as follows, each of which was included in substantially similar forms in the Draft Action Plan:
- Developing essential training in partnership with Indigenous organizations to deliver to the public service, public institutions, and corporations to build competence on the history and rights of Indigenous peoples, treaty process, title, UNDRIP, Indigenous-specific racism, and meaningful reconciliation (3.1);
- Establishing an operational approach and achieve targets for equitable recruitment and retention of Indigenous peoples in the public sector, including at senior levels (3.2);
- Implementing a mandatory course or bundle of credits related to First Peoples as part of graduation requirements in B.C., and co-creating culturally relevant provincial resources with Indigenous people for use by educators (3.4);
- Introducing anti-racism legislation that addresses Indigenous-specific racism (3.6);
- Developing and implementing community-driven activities to end violence against Indigenous women, girls, and 2SLGBTQQIA+ people (3.8);
- Implementing improvements to public safety oversight bodies and complaints processes (3.10);
- Developing and implementing policing reforms to address systemic biases and racism in policing (3.11); and
- Prioritizing the implementation of the First Nations Justice Strategy and the Métis Justice Strategy to reduce the substantial overrepresentation of Indigenous Peoples involved in and impacted by the justice system (3.12 and 3.13).
Since the Draft Action Plan was released, the province has removed measures to expressly address the Calls for Justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls, instead focusing on beginning with activities in A Path Forward: Priorities and Early Strategies for B.C. and taking steps towards developing a gender-based violence action plan.
- Social, cultural, and economic well-being
The actions in this area seek to ensure that “Indigenous peoples in B.C. fully enjoy and exercise their distinct rights to maintain, control, develop, protect and transmit their cultural heritage, traditional knowledge, languages, food systems, sciences and technologies. They are supported by initiatives that promote connection, development, access and improvement, as well as full participation in all aspects of B.C.’s economy. This includes particular focus on ensuring the rights of Indigenous women, youth, Elders, children, persons with disabilities and 2SLGBTQQIA+ people are upheld.”
The Action Plan includes a number of additional desired outcomes in comparison to the Draft Action Plan, including but not limited to:
- “Governance of the economy respects, acknowledges and upholds Indigenous rights and interests and First Nations title, is co-led with Indigenous Peoples, and ensures that all First Nations have economic opportunities and benefit from the lands and resources in their territories”; and
- “The Province and Indigenous Peoples collaborate through meaningful dialogue to create more inclusive, sustainable and low carbon economics for the benefit of present and future generations and a just climate transition”.
Some of the key actions in this area are as follows, each of which was included in the Draft Action Plan:
- Establishing a collaborative, whole-of-government approach to partnerships with the Métis Nation, respecting Métis self-determination and establishing more flexible and sustainable funding (4.20);
- Co-developing a policy framework to support repatriation initiatives (4.33);
- Ensuring every First Nation in B.C. has high-speed internet services (4.36);
- Co-developing economic metrics to evaluate progress on reconciliation (4.42);
- Co-developing recommendations on strategic policies and initiatives for clean and sustainable energy, including by identifying and supporting First Nations led clean energy opportunities connected to CleanBC, the Comprehensive Review of B.C. Hydro, and the B.C. Utilities Commission Inquiry on Regulation of Indigenous Utilities (4.43); and
- Advancing a collaborative approach to cannabis-related governance and jurisdiction with First Nations (4.47).
Additional actions have been added in the Action Plan since the Draft Action Plan, including:
- Supporting the identification, prevention and removal of barriers for Indigenous persons with disabilities as part of the implementation of the Accessible British Columbia Act (4.9);
- Incorporating Indigenous experiences and knowledge of poverty into ongoing poverty reduction efforts and the 2024 Poverty Reduction Strategy (4.15);
- Reviewing principles and processes for the naming of municipalities and regional districts and consider changes to foster reconciliation (4.27);
- Drafting a report on how B.C. Parks can better reflect the histories and cultures of Indigenous peoples in provincial parks and protected areas (4.28);
- Ensuring Indigenous collaboration in the development and implementation of the B.C. Economic Plan (4.40); and
- Working with the Province’s Economic Trusts to ensure inclusion of First Nations at a regional decision-making level.
The province will annually report on its work to implement the Action Plan. Additionally, the Action Plan will be comprehensively updated within five years.
Declaration on the Rights of Indigenous Peoples Act Action Plan Indigenous Peoples Act Action Plan United Nations Declaration on the Rights of Indigenous Peoples Mineral Tenure Act First Nations