It was a historic day when the BC legislature unanimously passed the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA). Then the Lieutenant Governor gave it royal assent a few days later. Nowhere else in the world has a government passed legislation to implement UNDRIP. Not even the federal government was able to get legislation through to do the same thing even though it did try. The world is watching BC to see how they do in implementation and if they can be successful in its follow through.
Now that the applause and standing ovations are over, we must make this historic moment more than just a moment, we must turn it into something remarkable. We must get to work to implement this new law. It is a chance to change the status quo forever, get rid of systemic barriers to progress, be innovative and watch First Nations embrace their right of self-determination.
Self-determination is the foundation of UNDRIP. First Nations can pursue their own political status. It is not up to BC to decide who the proper rights and title holders are, or if you work alone as a First Nation or work in a collective of First Nations. It is the First Nation's choice.
Working with First Nations can now never mean conversations, dialogues, feedback or other such weak words. FPIC leading to consent is the standard now. Also Article 18 says that First Nations must participate in decision making in matters which would affect their rights.
(Article 18: Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own proce- dures, as well as to maintain and develop their own indigenous decision-making institutions)
The UNDRIP Act was developed by the Leadership Council (heads of the 3 FN organizations in BC) and their legal team and B.C. There were motions by the 3 organizations to work with BC on the law but it didn’t say don’t obtain a mandate, never go back to the First Nation for their input or for their final approval. At BCAFN in October, I asked to amend the resolution to include the LC and BC working with First Nations on the draft. This was done 3 weeks before the legislation was tabled. What they did was allow chiefs/leaders to see the draft only after they signed non-disclosure agreements. Any input we had was not taken into consideration. I saw the draft one week before it was tabled and expressed my concerns on what was lacking. Premier, Minister, this can never happen again. If you want to live up to UNDRIP and if you want to say you worked with First Nations then you need to work with 203 First Nations in BC. Minister Fraser, I never want to hear you say that you can’t possibly work with 203 First Nations because it is too much because UNDRIP requires you to do so. Self-determination requires to you to recognize the political status of a First Nation as they have defined it.
Under self-determination First Nations can also freely determine their own cultural, social and economic development. The barriers to these developments must be removed out of any legislation or policies. The right to self-determination crosses many laws and this will be difficult to accomplish but first nations know which laws impede their development and will be seeking to change those laws as priorities.
Premier, Minister, you must also change the way you develop laws. First Nations must be part of the drafting process until it is tabled in the legislature. And if any amendments come from the legislature, First Nations must have consent to those changes. It cannot be out of First Nations hands at any part of the process. That is real involvement and the way to achieve free, prior and informed consent. (FPIC). Right now, legislation is drafted by drafters and base it on instructions from government. Now First Nations must be part of that drafting process. Article 19 specifically states that the free, prior and informed consent of indigenous peoples must be obtained before adopting and implementing legislative or administrative measures that may affect them. So working with First Nations from the beginning in good faith through consultation and cooperation is a must.
(Article 19: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent be- fore adopting and implementing legislative or administrative measures that may affect them.)
Further advice is to put in place immediately an independent dispute resolution body with the consent of First Nations to resolve the various interpretations of UNDRIP. For example, we have already heard the province say consent does not mean veto. Which is true. But consent means yes and no. How does No differ from veto? and how do we come to a consensus on what No means.
Possibly having think tanks with First Nations could also be held to collect varying views on provisions of UNDRIP.
The New Relationship Vision was a good initiative. Its failure was because BC and First Nations could not agree on what shared decision making was or Land Use Planning or revenue sharing. We would not be where we are today if we could have fully implemented the New Relationship with shared decision making. We must learn from past experiences where failure to agree on terms was the fatal blow.
What are the barriers to implement UNDRIP Act? Let’s name them and look for ways to get around them. The success of UNDRIPA is in its implementation and First Nations and BC working together in respectful partnership, knowing that things have to change no matter how uncomfortable that may be as the status quo is unacceptable.
Premier and Minister. You now have a law you must live up to. First Nations will hold you accountable to its implementation. Don’t make promises you do not intend to keep. Let us not end up in court fighting over what UNDRIP means. Let us use this opportunity to truly have self-determining First Nations that are steering their own future. Let’s not let BC stand in the way of development but rather to facilitate that development.
Further words of advice, you must hire more staff to work with First Nations in implementing UNDRIP. Don’t disappoint by saying that you don’t have enough staff. I don’t want to be asking as I have in the past, how do I get on the favoured “Indian” list? If you are taking this seriously and I think you are, you have to think about your own capacity. Also ensuring First Nations have enough capacity-money to hire staff to do this. It is a very large undertaking and it must be taken seriously!!
Premier, Ministers, I ask you to heed my advice. You can do this right or you can do this wrong. Always take your cues from the First Nations you are working with. They are the experts in what they need and want.
Let us be visionaries and carve a better future for First Nations where our language and culture flourish, where we define our politcal status, where we find our own cultural, social and economic success in our ways and within our values. B.C. can only benefit from such a world. Making a moment in history into a lasting legacy is no small task but First Nations are up for the challenge. Is BC? Remember the world is watching.