Of Earthquakes and DRIPA

Everyone is expecting that the Declaration of the Rights of Indigenous Peoples Act – DRIPA – will be front and centre in the upcoming session of the BC Legislature. I've been talking about it a lot lately, and I'm going to talk about it again here.

But first, let’s talk about earthquakes. As everyone knows (or should know!) the Pacific Coast is the most earthquake-prone region of Canada. Earthquakes occur here regularly. Those of us living in the southwest corner of British Columbia have long been warned to protect ourselves against the risk of the big one, which the experts tell us is not a question of “if” but “when.”

What do we do about that risk? 

In Vancouver, most of the schools were not originally built to withstand any serious earthquake, let alone a major one. We know more now than we did when these schools were built, and we know the damage that a major earthquake would cause.

The situation presents two options for policy-makers. 

One is to wait for the earthquake to occur, express our thoughts and prayers for all those who have been injured or killed, and then build a new school afterwards.

Another option is to take steps to mitigate the risk of that harm by earthquake-proofing schools, where that is feasible, or in some cases, building the new, earthquake proof schools now.

As a grandfather of two boys who attend an old school in Vancouver where these steps have not been taken, I am acutely aware of the risk we subject these boys to when they head off to school every morning.

There is strong public support for all efforts undertaken by government to mitigate or prevent the risks associated with major earthquakes. You don’t hear people say, “well, we should just wait for the earthquake to happen and then do something about it.” 

The idea of risk mitigation and avoidance is pervasive in our lives. We vaccinate our children and ourselves to mitigate or prevent the risk of serious disease.  We exercise not just because we feel better doing it but because it’s a way of lowering the risks of poor health. We encourage governments to provide deposit insurance for our savings as a way of mitigating the risk of bank failure. We buy insurance to avoid the risk of personal financial disaster if our house should burn down or we are involved in a catastrophic car accident. We don’t wait for the bankruptcy or the fire or the collision. We take steps now. We take those steps not because we are obliged to, but because we choose to.

So now let’s talk about aboriginal rights and title.

We know that substantially all of British Columbia is subject to claims of aboriginal rights and title. We also know that in the most recent three court cases involving disputed claims of aboriginal title, the courts ruled in favour of such claims, and in fact there is no case in British Columbia where a court has ever rejected a claim of aboriginal title. Aboriginal title is not a question of “if”, it’s a question of “where” and “when.”

What do we know about Aboriginal title? Aboriginal title confers the right to the exclusive use and enjoyment of the land and the right to decide how the land will be used. This is the law as it has been established by the Supreme Court of Canada. 

We also know that a finding of Aboriginal title imposes significant constraints on the ability of the Province to make land and resource laws and decisions. It was conclusively established by the Supreme Court of Canda in 1997 in a case called Delgamuukw that the province has never had the authority to extinguish aboriginal title. The province does have the authority to infringe aboriginal title (not the same as extinguishment), but only if it can justify that infringement, and the bar for justifiable infringement is high – there is no aboriginal title case in British Columbia where a court has upheld an infringement argument. But more importantly, whenever the province makes a decision that may infringe Aboriginal rights or title, the indigenous group has the right to take government to court, to challenge the decision, and as I have said elsewhere, it is the courts, not government, that have the last word on whether the infringement has been justified.

Aboriginal title has not been found in many places. But there is a risk it could exist anywhere. 

There’s that word: risk.

So, faced with a risk, policy makers once again have two options. They could ignore the risk and simply wait for title claims to make their way through the courts and then deal with the consequences afterwards. 

Or they could take steps to avoid or mitigate the risk.

Here is where DRIPA comes in. DRIPA is legislation that creates frameworks for government to enter into agreements with indigenous governing bodies with respect to such matters as land and resource decision making. In these agreements, arrangements are made for indigenous participation in decision making. Decision making may be shared. It may be that both government and the First Nation will have to agree before a tenure or permit or Crown grant can be issued. 

One way to understand DRIPA is as a framework for dealing ahead of time with the risks of a finding of aboriginal title, and to secure the agreement of First Nations that in lieu of pursuing a claim of aboriginal title, or litigating government’s decision-making, they will agree to participate in land and resource decision-making, and share in the benefits that will accrue from resource development or protection.

The uncertainty and risk that flow from claimed aboriginal title are exchanged for the certainty and benefits of agreement.

If DRIPA is repealed, the framework will be gone. But the risk of aboriginal title claims will remain. And because of decisions of the Supreme Court twenty years ago, government will still be required to consult and in some cases accommodate asserted rights and title, even if they have not been proven. Repealing DRIPA will not eliminate these constitutional obligations. But there will no longer be a framework for doing this work, and no obligation on government to implement any plan to make sure this work is done. 

We are much better off with this framework than without it.

But some say, ah, but there is no constitutional requirement for indigenous consent.  The Supreme Court, they say, has said that aboriginal people do not have a veto over government’s decisions.

Here is my response to this argument.

First, shared decision-making is a political choice, not a constitutional obligation. So, too, is the enactment of DRIPA, and the acceptance of the principle that governments are to consult and cooperate in good faith with indigenous peoples in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources.

But now let’s see what the Supreme Court of Canada has said about consent. The word consent appears eleven times in the text of the Supreme Court of Canada decision in Tsilhqot’in. What the court is dealing with is the question of what is left of Crown authority after a declaration of title has been made. It’s worth reading all of these statements. I’ve footnoted some of them.^[1] But here’s the most important sentence:

[97]                          Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.

To say that “consent” is not a constitutional obligation, or that aboriginal people have no constitutional “veto” over Crown decision making is to miss the point altogether. Negotiating shared decision-making agreements is a way of avoiding a charge of infringement or failure to adequately consult. It’s a way of trading the uncertainty of court challenges for the certainty of agreement. It’s a way of trading the paralysis of endless delay and litigation, with all of the harm to investor confidence that flows from that, for the certainty of agreements in which, yes, decision-making is shared, but opportunity is created, and benefits are also shared.

The other day I was thinking about how the world changed when the Supreme Court of Canada held in the Haida Nation case in 2004 that government is constitutionally required to consult with First Nations whenever it “contemplates“ conduct that may adversely affect asserted aboriginal rights and title. What Haida Nation has meant is that every government land and resource decision can be judicially challenged. And every judicial challenge creates delay and uncertainty – driving up project costs, putting jobs and communities at risk. Is this a big deal? I decided to ask AI: how many Haida Nation cases have there been? Google AI said this: “Since November 2004, the Haida decision has been referenced in thousands of legal contexts, including federal and provincial court decisions, tribunal hearings, and legal arguments regarding resource development.”

Wouldn’t it be better to live in a world where we could negotiate these things, rather than spend all our time fighting about them?

To all those who say the province will be better off without the framework of DRIPA, I say, go ahead. Wait for the earthquake. And in the meantime, maybe you’d like to have a chat with the private landowners in the Cowichan Tribes title lands?