BURST
Premier David Eby got a boost from the Supreme Court of Canada on Thursday as the B.C. legislature closed its spring session, in which questions about Indigenous title loomed large.
But Eby indicated he’s still concerned about unrelated cases involving court rulings on B.C.’s DRIPA law .
The top court refused to hear a challenge of a New Brunswick ruling that Aboriginal title could not be declared over privately-owned lands, and excluded private forestry lands from a title claim by the Wolastoqey First Nation.
It means the New Brunswick decision will stand and private property will be excluded from the title claim.
The federal government immediately signalled the New Brunswick case would be used in the provincial and federal appeal of B.C. Cowichan Tribes case, where a B.C. Supreme Court judge said Aboriginal title could coexist with private land ownership.
“This important New Brunswick Court of Appeal decision will inform arguments in other cases, such as the Cowichan case in British Columbia,” an official with the Crown-Indigenous Relations Department told Bloomberg News.
In B.C., Attorney General Niki Sharma said the New Brunswick case could bode well for the appeal of last August’s decision granting the Cowichan Nation Aboriginal title to a swath of southeast Richmond.
But for the NDP, a spring session in which Eby expected to solve questions about DRIPA once and for all simply turned into confusion about how Indigenous rights impact provincial legislation.
DRIPA — the Declaration of the Rights of Indigenous people’s Act — was meant to gradually bring provincial laws in line with the United Nations Declaration on the Rights of Indigenous Peoples Act. But the government has said the December Gitxaała decision leaves all provincial legislation at risk if it is not all already aligned with DRIPA.
“We have also appealed that decision to the Supreme Court of Canada, and the member will know that we were granted leave, which means we will be arguing that in front of the Supreme Court of Canada,” Eby said during a debate on his office’s $15 million budget. “It may be concluded before the fall session.”
After promising to bring in legislation that would have amended DRIPA this session, Eby then said he would suspend DRIPA for three years. Eventually he was forced to back down on that, too, following opposition from his caucus and Indigenous leaders, saying his government would consult with First Nations over the summer on next steps.
The premier has been saying for months that more than 20 lawsuits have been amended to refer to the Gitxaała decision in seeking to rule other provincial laws invalid because they don’t align with DRIPA. However, he has been unwilling to say what those cases are.
On Wednesday he revealed two of the cases, now that some preliminary decisions have been handed down.
The first involves an individual seeking enhanced care from ICBC who had benefits cancelled after failing to show up for a medical exam. Their case was amended to argue the civil resolutions tribunal had not taken DRIPA into consideration.
A second case involves the Willingdon School for Girls youth detention centre located in Vancouver from 1914 to 1959 and Burnaby from 1959 until in closed in 1973. A class-action lawsuit by resident of the institution who said they were forcibly confined and sterilized at the institution has been certified by the B.C. Supreme Court. Many Indigenous girls were sent to Willingdon for offences such as drinking alcohol.
EBY however, refused to reveal the other 18 cases.
“Revealing a list of cases would be revealing legal advice, which we do not do,” said Eby, who said that doing so may also inaccurately represent the position of the person or group of people challenging the government in court.
He did not explain how a simple list of cases could reveal legal advice or misrepresent positions.
Interim Conservative Leader Trevor Halford said the sheer number of times Eby has flip-flopped on DRIPA shows a lack of leadership.
He also said he hopes the Supreme Court will rule in favour of B.C.’s appeal on Cowichan because there is a need for certainty over private property rights, but slammed the government for not having a backup plan if it fails.
“I fundamentally believe that we need certainty when it comes to property rights,” Halford said Thursday.
“I asked a very direct question to the premier last night, and that’s what happens if this appeal fails, that the province fails on their appeal. What is the backup plan? Where, what is the province going to do? And they don’t have a clear answer on that.”
Green Party Leader Emily Lowan agrees with Halford that Eby and his government have shown a lack of leadership when it comes to DRIPA and Cowichan but differs with the Conservative leader when it comes to what position she wants the government to take.
She said that the government should have held their ground on the legislation instead of getting dragged into what she called a “racist culture war.”
“They’re responding to the Conservative backlash to DRIPA, not the actual substance of the legislation, it is a framework for Indigenous human rights, and I just think what we’ve seen is complete cowardice on behalf of the NDP, and constantly capitulating to Conservative fear,” said Lowan.
“I’m personally happy that the NDP has chosen to take a step back from amendments, and they have a lot of work to do over the summer.”
Alazenby@ postmedia.com