Geoffrey Moyse: Democracy is dying in British Columbia under UNDRIP
British Columbians should not accept an undemocratic bilateral process, carried out entirely in secret.
In a judgment issued on 5 December 2025, the British Columbia Court of Appeal (BCCA) majority had this to say about UNDRIP in the British Columbia context:
“Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect.”
This judgment was delivered in response to a challenge by the Gitxaala First Nation, seeking a decision from the BCCA on the proper legal interpretation to be given to the B.C. NDP government’s DRIPA legislation — the Declaration on the Rights of Indigenous Peoples Act, 2019, and section 8.1 of the Interpretation Act.
DRIPA sets out a process under which the B.C. government, acting jointly with representatives of British Columbia’s Aboriginal people (whom the B.C. government takes to be the First Nations Leadership Council — the FNLC), works to amend all B.C. laws to bring them into conformity with UNDRIP — the UN Declaration on the Rights of Indigenous Peoples.
Article 19 of UNDRIP, which, according to the BCCA, is part of the positive law of British Columbia, says:
“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.”
This is how DRIPA specifically incorporated Article 19 when it was passed by the B.C. legislature:
“3) 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.”
Note how section 3 of DRIPA incorporates the wording and intent of Article 19 of UNDRIP — “in consultation and cooperation with the Indigenous peoples” — and says that the government, through such consultation and cooperation, must take all measures necessary to ensure that the laws of British Columbia are consistent with UNDRIP.
And so, the argument goes, even attempting to amend DRIPA cannot be undertaken by the B.C. government without the “free, prior and informed consent” of the Indigenous peoples of this province — presumably as represented by the activist FNLC.
At its core, DRIPA creates an arguably undemocratic bilateral process, carried out entirely in secret, involving the FNLC and the government jointly deciding which B.C. laws must be amended to align with UNDRIP. This arrangement, in which the government and the FNLC jointly decide on the content of legislative policy and, in fact, the content of legislation itself, is extremely problematic from a democratic perspective. This problem has finally been brought under public scrutiny because of Premier David Eby’s “flip-flopping” on the question of amending or suspending those sections of DRIPA and the Interpretation Act relied on by the Court of Appeal, and because he was ultimately pressured by the FNLC into doing no such thing.
The FNLC has been adamant that it fundamentally rejects any government attempts to alter DRIPA in any way whatsoever.
And yet the Premier himself has stated that the province faces an urgent need to deal with the potential fallout from the Gitxaala decision, which he has said creates enormous legal liability for the province.
The Premier has now said that the Attorney General has “tapped him on the shoulder” and recommended that he accept her idea of setting aside any further thoughts of amending or suspending any part of DRIPA in favour of sitting down with the FNLC to discuss and negotiate the issues for a period extending until the fall sitting of the legislature in October.
Because the Premier has now essentially caved in to FNLC demands that DRIPA be left alone, he would appear to hold no cards at all in the forthcoming negotiations with the FNLC, aimed at finding a resolution to the Gitxaala legal liability he claims requires urgent attention. This difficulty is exacerbated by the fact that the FNLC has publicly stated, along with the B.C. Green Party, that the province must live with the Gitxaala decision.
Now, as of 24 April, Terry Teegee has stated that this six-month discussion about DRIPA between the FNLC and the government — brokered by the Attorney General — will result in “no changes to DRIPA”.
So, we have a Premier who regards the legal liability created by the Gitxaala decision to be urgently problematic and a threat to the province, yet is being paralysed by his government’s acceptance of the power of the FNLC lobby, and then giving in to another six months of delay in dealing with the substance of that threat on behalf of the 5.7 million other British Columbians. All this, while a member of the FNLC is now publicly saying that these discussions will not lead to any changes to DRIPA.
There can be no clearer example of how democracy is dying in British Columbia as a result of the B.C. NDP’s unwavering fealty to both the FNLC and to UNDRIP itself, ahead of the interests of millions of other British Columbians. The voting public of this province should stand up and demand the return of democratic governance in this province through the institutions our society has created for that purpose.
Geoffrey S. Moyse, KC, is a retired senior lawyer who served as legal counsel to the Province of B.C., advising six successive governments on Aboriginal law over more than 30 years. He is principal at Moyse Law and an advisor to the Public Land Use Society.
