Geoffrey Moyse: A glimpse into the NDP's failing reconciliation experiment

Is it a sign of good governance when the Premier alters his stance on amending DRIPA six times?

(David Eby introducing the K’ómoks Treaty Act in the B.C. legislature, photo credit to the Government of B.C.)

Politics is seldom as wild in the rest of Canada as it is in British Columbia (B.C.). It is timely to recap the latest on the B.C. government’s failing ‘reconciliation’ agenda, based on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

The saga began in B.C. in 2019, when the Horgan administration agreed with the Truth and Reconciliation Commission that B.C. should fully adopt and implement UNDRIP as the framework for reconciliation.

This was despite Canada already possessing a robust constitutional structure for the recognition and affirmation of Aboriginal rights and treaty rights, in the form of section 35 of the Constitution Act, 1982.

In its jurisprudence, the Supreme Court of Canada has held that section 35 is all about the ‘reconciliation’ of prior Aboriginal societies with the reality of Crown sovereignty. So why do we need UNDRIP for that purpose? The answer? We don’t.

The Horgan administration worked hand in glove with Aboriginal organisations and their lobbyists to co-produce, in effect, the B.C. Declaration on the Rights of Indigenous Peoples Act (DRIPA) in 2019.

DRIPA creates a process under which the B.C. government and representatives of British Columbia’s Aboriginal leadership – the First Nations Leadership Council (FNLC) – decide how to amend all B.C. laws to bring them into conformity with UNDRIP.

In 2019, the government told the B.C. Legislature what DRIPA would not do: it would not create any new rights, would not be used to go beyond section 35, and would be interpreted specifically in accordance with section 35. Unfortunately, none of these promises turned out to be true.

The B.C. government says that it never intended DRIPA to have the effect of bringing UNDRIP itself into positive law in the province or that DRIPA, and thus UNDRIP, would be judicially enforceable.

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For some time after 2019, the government made various attempts to amend B.C. laws to ‘bring them into conformity with UNDRIP’ under the DRIPA ‘process’. This was despite UNDRIP being, in many respects, inconsistent with section 35 in its characterisation of the scope of Indigenous rights.

These attempts proved disastrous. Changes to the Land Act and the Heritage Conservation Act were met with storms of controversy, as the public and the business community roundly rejected the government’s amendments to existing legislation.

Then, on 5 December 2025, DRIPA took on new and ominous legal significance with the B.C. Court of Appeal’s judgment in Gitxaala v British Columbia (Chief Gold Commissioner), 2025 BCCA 430.

The court determined that DRIPA, coupled with an amendment to the Interpretation Act put forward by David Eby in 2021 as Attorney General, brought the articles of UNDRIP into the positive law of British Columbia. The effect is that any B.C. law can now be challenged and potentially invalidated by a court for non-compliance with UNDRIP.

The Premier was apparently incensed by the judgment, vowing to seek leave from the Supreme Court of Canada to appeal against it – leave that has now been granted.

The Premier changed his mind six times about whether to amend DRIPA to undo the effect of the Gitxaala decision. The last change occurred when the FNLC threatened the province with civil disobedience and ‘collective resistance’, and members of the New Democratic Party (NDP) caucus refused to endorse any amendments to DRIPA.

Attorney General Sharma recommended that the Premier drop the idea of amending DRIPA in favour of months of further discussion with the FNLC about how to move forward.

So nothing has been done to reduce the ‘existential legal risk’ the Premier identified as resulting from Gitxaala. Apparently, the government and the FNLC will now either discuss the matter until early October or wait for more than a year for the Supreme Court of Canada to hear and decide the government’s appeal.

Clearly, the B.C. government’s UNDRIP-based ‘reconciliation’ agenda continues to fail British Columbians. In what world could this ongoing debacle be considered good public policy? It is high time to revisit the whole misplaced concept. British Columbians should insist upon it.

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.

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