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Vaughn Palmer: David Eby flips from amending DRIPA to temporary suspension of parts of it

Premier bends in face of fierce opposition from Indigenous leaders

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VICTORIA — One day after vowing to amend the Declaration Act in the current legislature session, Premier David Eby backed down Thursday in the face of overwhelming opposition from the province’s Indigenous leadership.

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Instead, Eby sought Indigenous support for suspending, for now, the sections of the Act that contributed to a recent B.C. Court of Appeal decision.

Vaughn Palmer: David Eby flips from amending DRIPA to temporary suspension of parts of it Back to video

Two judges on a panel of three found that the province’s mineral claims staking system is “inconsistent” with the UN Declaration on the Rights of Indigenous Peoples.

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Eby described the proposed suspension clauses as the minimum necessary to eliminate the legal risk that other courts would overturn other B.C. laws on a similar basis.

The “temporary suspension” would be in place for as long as three years, Eby told reporters.

He reckons that would be enough time for the province to conclude its appeal of the mineral claims decision to the Supreme Court of Canada. Presuming the high court even agrees to take the case, which it has not yet done.

By no coincidence, a three-year suspension would also mean that the issue would not be back on the political agenda before the next provincial election, scheduled for October 2027.

Eby’s announcement at the legislature early Thursday afternoon came as a surprise.

For weeks, the New Democrats had been circulating proposals to Indigenous leaders to water down the most contentious provisions of the Declaration Act and the related Interpretation Act.

Those being the provisions the appeal court judges cited in concluding that, “properly interpreted, the Declaration Act incorporates the UN declaration into the law of B.C. with immediate legal effect.”

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The proposals drew zero support from Indigenous leaders, who wanted no changes in a law they helped draft and liked very much, particularly given the use the courts had already made of it.

If anything, the Indigenous opposition was stiffening, evident in both public statements and a stern letter of warning directly to the premier.

Eby acknowledged the Indigenous opposition when asked about it on Wednesday. Yet at the same time he vowed to stay the course on the amendments.

“We have been very clear. We will be amending the Declaration Act to respond to the court decision.

“To say that Indigenous leadership is enthusiastic about any change would be a total misstatement. They are not. And so it has been a challenging conversation, but it is non-negotiable for the provincial government.”

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Then a second time: “Yes the amendments will be introduced with lots of time for debate and discussion in the legislature.

Then a third: “Yes, we’re going to get these amendments through. We have to. There was a court decision that has created significant legal liabilities for the province.”

The amendments went from non-negotiable to the scrap heap in 24 hours.

Still, the ever-slippery premier denied any kind of backdown.

Rather, Eby insisted, the province had simply recognized the depths of opposition from Indigenous leaders and sought a way around.

Another factor may have been this week’s provocative suggestion by Robert Phillips of the First Nations summit in an interview with Wolfgang Depner of The Canadian Press.

Phillips predicted that the three NDP members of the legislature who are also Indigenous would face an “Elijah Harper moment” when it comes to voting on amendments to weaken the Declaration Act.

Elijah Harper was an Indigenous member of the Manitoba legislature who blocked passage of the Meech Lake constitutional accord in 1990.

The three Indigenous NDP MLAs are Debra Toporowski, Joan Phillip and Tamara Davidson. Phillip is the spouse of Grand Chief Stewart Phillip, longtime leader of the Union of B.C. Indian Chiefs.

Davidson, who is also environment minister, had already rejected voting no on the changes.

“It is disappointing to hear that I must vote on amendments to legislation based solely on my heritage,” she told The Canadian Press.

“We do not want to cause an election,” said the summit’s Robert Phillips.

But his suggestion could have that effect. The B.C. Greens oppose any change in the Declaration Act. The B.C. Conservatives seek outright repeal.

If even one of the three Indigenous New Democrats broke ranks, the government would be defeated on the proposed amendments to the Act.

Eby denied that was a concern. “Our caucus is strong, our caucus is united,” he said. Moreover, New Democrats understand very well the consequences of breaking ranks, defeating the government, and forcing an election.

With the amendments parked on the shelf, the government is instead drafting the necessary bill to suspend the offending clauses.

Those will be circulated to Indigenous leaders as well. Eby did not set a deadline for them to say whether they like the temporary suspension any better than the permanent amendment.

But he signalled that with just six weeks left in the session, the government intends to act soon.

“The window is closing,” said the premier.

The suspension bill will also be “a confidence vote.”  While pledging time to debate changes in the Declaration Act,  he didn’t rule out using the government majority to cut off debate if time expires before the scheduled May 28 adjournment of the spring session.

vpalmer@postmedia.com 

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