The Strathcona Standard

By Grant Warkentin

The first time I carefully read the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), I knew it was going to be trouble.

It was the fall of 2017. Then-Premier of BC John Horgan announced his newly-elected minority government was “committed to working in partnership with Indigenous peoples to embrace and implement UNDRIP, which has been accepted by 148 nations, including the Government of Canada.”

I had heard about the declaration in passing, but hadn’t given it much thought. Almost everything I’d absorbed had given me the impression the declaration was something aspirational, high-minded ideals to strive for over time, and implement into law through serious national and provincial conversations. I assumed there would be lots of opportunities for the public and indigenous peoples to have a say on how UNDRIP would impact the shared political, social, and economic fabric of Canada and BC.

I had no idea how wrong I would be.

Under the public radar

Politicians, lawyers, judges, and pundits may be intimately familiar with UNDRIP, DRIPA, reconciliation, and what implications they hold for property owners, but the general public is not.

Even after the Cowichan decision made headlines last year, suggesting a Vancouver Island nation has title over private properties in Richmond, there was little public exposure. An Angus Reid poll last year after the Cowichan decision showed 33% of BC residents still hadn’t heard of UNDRIP even after years of controversy.

Google Trends shows almost no one in BC was searching for information about DRIPA for years after it was enshrined in law, until after the Cowichan decision came out.

Something wicked this way comes

Prior to 2007, when UNDRIP was passed by the UN Assembly, Canada, New Zealand, Australia, and the USA co-ordinated their opposition to be the only “no” votes. Their opposition was to be expected, as former colonies of the British Empire with significant indigenous populations, and decades of difficulties trying to resolve conflicts over indigenous rights.

However, it’s puzzling why other countries with colonial pasts voted enthusiastically in favour – their reasons for supporting UNDRIP would make for a fascinating article on its own.

Why did more than a dozen Muslim nations founded by the most brutal colonialism in history, with well-documented cases of genocide against the indigenous inhabitants of their lands and neighbouring lands, vote in favour of the declaration? Why did China, with its documented, institutionalized oppression of indigenous minorities, vote in favour? Why did former British colonies in Africa, now functioning democracies governed by indigenous populations, abstain from voting? And why did a host of Pacific Island nations with indigenous majorities not bother to show up to vote at all?

Was UNDRIP little more than a poison pill designed to be shoved down the throats of targeted Western democracies by the nations who want to see them fail?

Ripples swell from UNDRIP drop

In 2009 and 2010, after being lobbied hard by domestic and international UNDRIP supporters, all four countries which originally voted “no” to UNDRIP at the UN changed their positions to support the document as “aspirational.” Regular Canadians didn’t notice. There was almost no public discussion or debate about UNDRIP and its implications for Canada outside academic and activist circles.

That is, until the Harper government’s Truth and Reconciliation Commission released its final report. Its “94 calls for action” were published in June 2015, six months before the final report officially dropped in December, but just in time for politicians to use in their campaigns during the months leading up to the October 2015 election. The election results marked the beginning of Justin Trudeau’s “sunny ways” governance style and the end of the Harper era.

In 2016 the new Trudeau government, which had pledged during the election campaign to implement UNDRIP on a federal level, retracted Canada’s formal objections to the UN. Jody Wilson-Raybould, serving as the federal Attorney-General, offered caution, pointing out that “simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable and, respectfully, a political distraction.”

Wilson-Raybould advocated for a “made-in-Canada” solution, adopting the principles of the declaration through the filter of the Canadian Constitution and established Canadian case law, rather than imposing the declaration from the top down. In 2019, she resigned from cabinet over the unrelated SNC-Lavalin scandal, and none of her suggestions were followed when Canada adopted UNDRIP via Bill C-15 in 2021.

In an op-ed published in 2021 in the Globe and Mail, Wilson-Raybould again predicted UNDRIP would not help reconciliation.

“The day after Bill C-15 passes, the Indian Act will remain on the books unchanged,” she said.

The Indian Act remains in effect in Canada, five years later.

Enter the BC Greens

After getting a regime change with Trudeau at the federal level, BC voters were getting ready to follow their usual pattern of punishing the provincial government after a decade of broken promises. The 2017 election resulted in a minority government for the BC Liberals, a warning from the electorate, but a political opportunity for the other parties.

The 2017 election in BC was a tight race with some ridings decided by the slimmest of margins, the popular vote the closest in BC history.

After more than two weeks of counts and recounts clarified the final numbers, NDP leader John Horgan announced he was working on a governing framework with the Green Party, which had won three seats. The NDP and Greens held 44 seats combined compared to the Liberals’ 42, and on May 30, 2017, Horgan and Green leader Andrew Weaver signed a Confidence and Supply Agreement. Less than one month later they defeated Christy Clark’s fledgling government on a confidence vote, and Horgan was declared premier, dependent on Weaver’s ongoing support.

Judging by news reports covering the political machinations pre- and post-election, UNDRIP was not on the public’s radar at all. However, Horgan and Weaver decided to make it the basis of their co-governance.

“A foundational piece of this relationship is that both caucuses support the adoption of the UN Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commission calls to action and the Tsilhqot’in Supreme Court decision,” says the Confidence and Supply Agreement. “We will ensure the new government reviews policies, programs and legislation to determine how to bring the principles of the Declaration into action in BC.”

In the announcement hailing the deal with the Greens, Horgan’s NDP made sure to emphasize the commitment to changing BC’s laws based on UNDRIP.

“Our government has made reconciliation a cross-government priority. As we work together to address urgent challenges, like wildfire and emergency response, the opioid crisis and support for children and families in communities, we will embrace and implement UNDRIP in full partnership with Indigenous peoples,” says the last paragraph of the announcement.

Ignored consequences of ‘free, prior and informed consent’

This brings me back to the beginning of this article, the fall of 2017, when I first started paying attention to UNDRIP and its implications.

The multinational company I worked for at the time was committed to following the government’s lead. Management had already enthusiastically and voluntarily implemented United Nations directives into company policies locally and internationally, and was committed to following the UN’s 2030 Agenda For Sustainable Development. If it came from the UN it must be good, was how they saw it.

Less trusting of the UN than my European colleagues, I decided to read through the document for myself and see what it was going to mean for Canada in general, and British Columbia in particular.

It seemed at first to be mostly intended for developing countries with weak regulatory regimes that exploit indigenous populations as labour pools, and extract resources from indigenous lands without compensation. It appeared aimed at countries that were at least a century behind Canada in terms of how they treat their indigenous populations.

Why hasn’t UNDRIP been more popular among the nations who voted for it? Perhaps after carefully reading Article 19 they concluded, as I did, that it’s a poison pill:

“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 before adopting and implementing legislative or administrative measures that may affect them,” it reads.

Indigenous peoples must provide “free, prior and informed consent” before any sort of project or legislation that might affect them can go ahead?

The needs of the few outweigh the needs of the many?

That is in essence a veto power, and a circle BC has been trying to square ever since committing to implementing UNDRIP. The consequences from trying to interpret “free, prior and informed consent” while also trying to force it into compatibility with Canada’s constitution have been disastrous.

I’m not alone in seeing “free, prior and informed consent,” or “FPIC” as legal experts and pundits like to call it, as a veto problem. There have been more than a few Canadian voices before and after 2007 warning about the potential of UNDRIP to wreak havoc on reconciliation efforts between indigenous peoples and the rest of Canada.

In fact, during legislature debates over DRIPA before it was passed, BC’s Minister of Indigenous Relations and Reconciliation Scott Fraser repeatedly reassured MLAs that DRIPA would not give the UN Declaration “legal force and effect,” would not create new rights beyond Section 35 of Canada’s Constitution, which recognizes existing aboriginal rights and title, and that courts should not use DRIPA to strike down existing BC laws.

“Upon passage, there is no immediate effect other than as an interpretive aid on laws. It does not give legal force and effect,” Fraser told the legislature.

BC’s courts subsequently disagreed, ruling DRIPA was immediately enforceable — the opposite of what MLAs were told when they voted for it.

Sitting on a time bomb

Continuing my reading of UNDRIP I discovered Article 28, which sets up the mechanisms by which a sovereign nation can be destroyed from within.

“Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent,” it says.

I envisioned a flood of court claims to tackle injustices that have gone unaddressed since the pre-Confederation Douglas Treaty days. After joining Confederation in 1871, BC made no attempts to sign treaties or respond to historical dispossessions of indigenous populations, unlike every other province in Canada. Indeed, only after the 1990 Sparrow decision was this province finally motivated to take action, creating the BC Treaty Commission in 1993 to facilitate treaties between BC First Nations and the Crown.

Even worse, it appeared to me UNDRIP would create incentives to bypass treaties and public engagement.

“Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress,” concludes Article 28.

Whose lands? Whose money? Through what process? Treaties? Or something else? Will taxpayers have any say?

Crucial caveat in UNDRIP ignored by eager politicians

I was not confident that BC politicians would be up to the task of handling those questions in a way that addressed the intent of UNDRIP while also respecting the millions of people living here, the same people who would be forced to write a blank cheque to make up for the failings of past governments.

UNDRIP does have language that suggests infringing on the rights of others and tearing apart the fabric of a state to implement its recommendations is unacceptable, but it seems to have been mostly ignored by BC lawmakers.

“Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States,” reads Article 46, the last part of the document.

I do not understand how this final segment of UNDRIP, and its implications, seems to have been ignored by Canadian politicians.

I can only find one example of Article 46 being discussed in the legislature, during a 2019 exchange between Fraser and Liberal MLA Mike De Jong, who questioned Fraser about his interpretation.

Fraser said it “confirms that the province continues to have the right to make decisions in the public interest. But again, I qualify this. Neither the UN declaration nor Bill 41 provides a veto.”

Fraser’s answer seems to have satisfied critics, as Article 46 was never mentioned again.

When is a veto not a veto?

The signs were all there for anyone to see that UNDRIP would lead to catastrophe.

Even before the fateful Horgan and Weaver deal, Canada was grappling with the implications of UNDRIP. What is consent? What is consultation? Are they vetos, or can something still go ahead even if a First Nation does not formally consent?

Perhaps Horgan and Weaver believed the courts would figure these questions out for them, and believed enshrining UNDRIP in law would be helpful. If that’s what they were thinking, they weren’t alone.

Prior to the 2025 Cowichan decision, Canada seemed confident legal precedent would show the way, relying heavily on a landmark court case from 2004 (Haida Nation v. British Columbia), “where the Supreme Court of Canada made clear that aboriginal groups with asserted rights and title do not have a veto, but the Crown must consult and, where appropriate, accommodate aboriginal groups in respect of decisions that may affect their interests.”

The recent Cowichan decision used the 2004 Haida decision to affirm that indigenous people must be consulted, and reaffirmed previous court decisions that aboriginal title existed first. However, Cowichan was unique in that for the first time, it ruled that aboriginal title superseded privately-held fee simple land titles.

Our past politicians should have anticipated this outcome. But riding high after defeating Clark and returning social justice ideals to government after 16 years of BC Liberal policies, the Horgan-Weaver government didn’t fully consider the legal consequences, and decided to go ahead with shoehorning UNDRIP into BC law, the details to be figured out later.

The recent Cowichan and Gitxaala decisions suggest that in the view of the courts, DRIPA’s text overrode the Haida precedent, and the question of whether or not “free, prior and informed consent” is a veto, is now back on the table.

DRIPA drops, pandemic starts

On November 28, 2019, the BC Legislature voted unanimously to adopt DRIPA, the Declaration on the Rights of Indigenous Peoples Act, which incorporated UNDRIP’s principles into BC law.

“In consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration,” it says.

During ceremonies in the Legislature, Horgan again took the opportunity to point out how DRIPA was the foundation of his co-governance deal with Weaver.

“I’d like to also acknowledge the support of the Green Party caucus and recognize that we put together a confidence and supply agreement that focused on this very issue,” he said.

BC Liberal leader Andrew Wilkinson’s comments supporting DRIPA at the time are ironic in retrospect.

“Questions will arise. This process of change, reconciliation and a modern approach to engaging with Indigenous peoples will generate many questions, as everyone involved needs certainty,” he said. “Those questions will include such things as: what about grazing rights for cattle on Crown land? How do we manage parks and the use of B.C.’s massive back country? Will the forest industry need to make adaptations and accommodations, and what will they be? How will mining activity be affected? These questions will be posed to the government of the day as each election cycle comes and goes.

“As a society, we’ll need to address them, respecting the needs, hopes and dreams of everyone involved — most especially, the peoples in all of our communities, because that is respectful engagement, and that is the foundation of reconciliation.”

As the Strathcona Standard reported last week, politicians are already looking at how to force backcountry users to abide by DRIPA, answering Wilkinson’s rhetorical question.

Just two months after DRIPA was adopted, BC confirmed its first case of COVID-19, and on March 18, 2020 a state of emergency was declared. The pandemic had begun. Reconciliation and DRIPA were quickly forgotten by the general public as BC rushed to react to the events unfolding around the world, and the spread of a new, unknown coronavirus through local communities.

But the government didn’t forget. While British Columbians struggled with business shutdowns, stay-at-home mandates, vaccines, and school closures, the province continued working away on making BC laws compatible with the UN Declaration. As required by DRIPA, the province issued annual progress reports.

Feds follow suit during COVID pre-election campaign

In 2021, Canada passed its own national version of DRIPA, Bill C-15. While the bill was being discussed, Canada took great pains to explain that “despite what some have suggested, it is not about having a veto over government decision-making.”

So what is it, then? Apparently, it’s complicated.

“It is important to understand free, prior and informed consent in context: different initiatives will have different impacts on Indigenous peoples’ rights. Free prior and informed consent may require different processes or new creative ways of working together to ensure meaningful and effective participation in decision-making,” said the bill’s proponents.

Critics zeroed in on the veto issue, most notably Senator Don Plett, who stated that “No one seems to know the implications of UNDRIP being legislated, because there is no agreement on whether consent means a veto.”

Passed during the height of the pandemic, and only two months before a long-expected federal election was finally called, few in Canada paid any attention to the bill or its implications.

BC’s forgotten action plan

In BC, on March 30, 2022, the government finally released an “action plan” to explain how it would implement UNDRIP principles from 2022-2027. It received little attention from a public at the tail end of the pandemic elated to finally be rid of public health mandates and lockdowns, and eager to get BC’s economy up and running again.

It wasn’t until the Cowichan decision came down in August 2025 and its implications for property rights began percolating into the public consciousness, that DRIPA finally pinged on the public’s radar.

Canada stands alone

In this article I will spare the reader a recap of the Cowichan decision, the Musqueam agreement, legal challenges against the Nisga’a from its own members, the future of mining in BC after the Gitxaala decision, or how the K’Omoks treaty has re-ignited an ancient boundary dispute between the Laichwiltach and Salish peoples on Vancouver Island. These issues are now in the public eye and making news daily, as people are starting to question why these issues were allowed to flare up.

They’re all related to UNDRIP and how our provincial and federal governments have decided to implement it as DRIPA in BC. Liberals like Wilkinson enabled it, despite having some dim inkling that it could cause massive problems for their constituents.

With consequences starting to pile up, it looks like DRIPA has created legal and economic uncertainty that threatens the interests of all BC residents.

It’s obvious to me why most of the countries which paid lip service to UNDRIP have not adopted its principles: it’s not possible without disenfranchising the majority, sacrificing sovereignty, and writing a blank cheque on the bank of taxpayers with no accountability for how the money gets spent.

Canada remains the only democracy founded on Westminster principles with unresolved land title questions which has attempted to incorporate UNDRIP wholesale into domestic laws.

Eby’s the scapegoat, not the architect of disaster

I’ve noticed a recent trend from politicians of all stripes who enthusiastically supported DRIPA back in 2019, as they attempt to rewrite history and place all the blame for today’s negative blowback at the feet of current Premier David Eby.

Eby was appointed as BC’s attorney-general in July 2017 by John Horgan, after the NDP-Green coalition formed government. He was tasked with developing guidelines and legislation for implementing DRIPA into BC law. His legislation was unanimously approved by the legislature in 2019. He took over as premier in November 2022, after John Horgan resigned for health reasons. Horgan passed away in 2024.

There was no criticism of Eby’s handling of DRIPA at the time. Again, the entire legislature, representing all parties, voted unanimously in favour of it in 2019.

The Cowichan decision last year forced the public to take notice that perhaps their property rights, foundational to western democracy, were under threat. The growing swell of negative reactions since then has caused a flurry of activity among politicians who once supported DRIPA, as they now frantically look for a scapegoat to hide their own failings.

Eby is being set up to take the fall for two decades of willful blindness and cynical political machinations, and he doesn’t deserve it. He’s holding the bag that Horgan and Weaver, and the entire 2019 legislature, left him.

No shortcuts to real reconciliation

DRIPA is a disaster, but we’re all responsible. We, the public, are responsible for not paying attention. Our provincial politicians are responsible for using DRIPA as a tool to form a government the electorate didn’t ask for, and then mindlessly applauding it two years later. Our federal politicians are responsible for getting us into this mess at the UN in the first place.

The worst part of it all is, our kids and grandkids are the ones who are going to have to pay for it all, for generations to come.

Justice Murray Sinclair, Chair of the Truth and Reconciliation Commission, said that reconciliation is a “long road that has no shortcuts.”

He’s right, and the attempt to use DRIPA as a shortcut has led BC and Canada far off the trail and into the weeds. We need to dump it, stop relying on wording crafted by UN committees to govern ourselves, and follow Jody Wilson-Raybould’s suggestions to develop our own solutions, based on our own case laws, signing treaties that provide permanent certainty for everyone, indigenous and non-indigenous alike.

The first step is to repeal DRIPA.

The second step is to get serious about crafting unique made-in-BC solutions that fairly address the outstanding historical grievances of the province’s indigenous residents, without punishing the rest of the people who call this province home.

We all live here, and none of us are going anywhere. Time for Canada, and BC, to grow up and solve this ourselves, without the United Nation’s interference, and without trying to take shortcuts that only benefit politicians looking for quick wins.

Featured image: John Horgan (left) and Andrew Weaver are all smiles after signing their 2017 Confidence and Supply Agreement. Image from Province of BC