BILL 41 A SHOW OF UNITY
The New Democrats and B.C. Liberals both pronounced themselves satisfied this week when the house wrapped up a marathon exchange on the government’s UNDRIP legislation.
The two sides spent five days scrutinizing the legislation on a clause-by-clause basis. That’s an unusually large amount of time for a bill that had already been approved in principle by a unanimous vote of the house.
But both sides regarded the legislation, Bill 41 on the order paper, as historic, albeit from different perspectives.
The New Democrats saw it as a proud first step in their commitment to incorporate the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into provincial law and public policy.
It will make B.C. “the leader of the world,” as Minister of Indigenous Relations and Reconciliation Scott Fraser proclaimed at one point.
Though Bolivia and New Zealand are also moving on the UN Declaration, Bill 41, which is expected to receive royal assent today, puts B.C. at the global forefront.
The B.C. Liberals balked at endorsing the declaration when they were in government. However they decided to support the NDP legislation as their own gesture of reconciliation with First Nations.
But they were also determined to get the New Democrats on the record about the implications of both the legislation and the UN declaration.
For more than 20 hours, spread over the five days, the two parties — the Greens did not participate — went back and forth on the meaning of the seven main clauses in the bill and the 46 articles in the UN declaration.
Pressing for answers on the Opposition side were MLAs Mike de Jong and Michael Lee, both lawyers.
Fielding the questions exclusively for the government was Fraser, a non-lawyer who managed to hold his own with backing from staff in the ministry.
For the most part, the two sides conducted themselves with restraint and respect, making for a discussion that was as constructive as it was informative.
Fraser lost his cool only once, accusing the Liberals of “crass opportunism” when they claimed the NDP’s union-favouring community benefit agreements were in conflict with the UN declaration.
Many times the minister praised the Liberals for the quality of their questions. At the end he thanked them “for their thorough work on this — they’ve done a good job.”
De Jong and Lee likewise thanked Fraser repeatedly for the calibre of his answers, never mind whether they necessarily agreed with his interpretations of the legislation and the declaration.
For much of the time that he was on his feet responding to the Liberals, Fraser found himself explaining what the legislation won’t do.
“Bill 41 is not bestowing any new laws. ... The legislation does not create any new rights. ... It does not bring the UN Declaration into legal force and effect.”
More than once, he addressed the most controversial passage in the UN declaration, guaranteeing “free, prior and informed consent” to Indigenous peoples over decisions affecting their traditional territories.
“The UN declaration does not contain the word veto, nor does the legislation contemplate or create a veto,” he assured the house.
“The bill does not limit the right of government to make decisions in the public interest.”
Rather, the legislation provides a mechanism for government to make decisions in consultation with First Nations via a fair process.
“It does not mean a veto,” Fraser reiterated. “When you have due process, there is no veto.”
Another important exchange involved the potential impact on private land.
“A person with a fee simple interest in lands that are within the traditional territory of an Indigenous group, need not become afraid that somehow Bill 41 and the attachment of the UN declaration are going to negatively impact that person’s fee simple interest in their lands?” asked de Jong.
“That’s correct,” replied Fraser. What about privately held tenures on crown land for everything from recreational property to timber cutting rights?
“The act doesn’t change existing tenures on crown land, nor does it and of itself give the UN declaration force and effect,” said the minister.
But in the midst of that litany of things the legislation won’t do, Fraser also addressed what it will do.
“Bill 41 is a very powerful tool for government to effect change in a positive way,” he insisted.
“It will allow government to work collaboratively with Indigenous people in this province in a way that we haven’t done before.”
The terms commit the government to develop an action plan in consultation with First Nations “to achieve the objectives of the declaration.”
Fraser said the first iteration of the action plan will be completed “within months, not years,” but declined to provide a more specific deadline.
Another key clause obliges the government to “take all measures necessary to ensure the laws of B.C. are consistent with the declaration.”
This will take time, Fraser acknowledged.
In the interim, he maintained, “there will be no immediate effect on laws …
“We are not creating a bill here that is designed to have our laws struck down.”
But he acknowledged that passage of the bill could provide “an interpretive aid” to the courts. “The government’s intention is that the courts may, but they are not obliged, to use the UN declaration.”
Elsewhere in the debate, he conceded that the New Democrats can only guess at the likely response of the courts.
But that is a topic for another day.