Geoffrey Moyse: The BC NDP's UNDRIP disaster continues unabated

The economy and legislative authority of the provincial government is rapidly deteriorating.

(BC Premier David Eby, photo credit to the Government of BC.)

In the world of sport, it is usually referred to as an ‘own goal’. In that context, it is usually seen as an unfortunate and highly embarrassing error that sometimes entirely changes the outcome of a match.

In British Columbia, the BC NDP has managed to score an existential ‘own goal’ on its own ‘team’ of some 5.7 million British Columbians. Unlike in sport, however, this one was effectively intentional, and its repercussions are seriously degrading both the province’s democratic governance and its economy.

It all went sideways in 2015 when the Trudeau government indicated its unconditional international support for the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP. Previously, Canada had put important conditions on its backing of UNDRIP, but those were all dropped in favour of unconditional support.

Also in 2015, the Truth and Reconciliation Commission produced its Calls to Action — many of which were arguably outside its mandate. Call to Action 43 says:

43. We call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.

In November 2019, the BC NDP government, led by John Horgan, introduced legislation that had as its goal implementing UNDRIP as the framework for reconciliation. That legislation was DRIPA — the Declaration on the Rights of Indigenous Peoples Act.

Clearly, DRIPA was devised to respond to Call to Action 43. Under DRIPA, two things took place.

First, the legislation itself had at its core a completely undemocratic and very likely unconstitutional bilateral process involving the First Nations Leadership Council (FNLC) and the government jointly deciding on what BC laws must be amended to align with UNDRIP.

The legislation also contained two sections (sections 6 and 7) that were added to enable similarly undemocratic agreements to be entered into with ‘Indigenous governing bodies’, under which they would be accorded ‘joint’ or ‘consent-based’ decision-making authority over Crown lands.

Second, the NDP government of the day chose to deliberately begin largely secretly implementing UNDRIP throughout BC in policy form — something even the legislation did not envision.

The legislature was told during the debate on DRIPA in 2019 that it ‘created no new rights’ and would be implemented in a manner consistent with Canada’s constitutional recognition and affirmation of Aboriginal rights (section 35 of the Constitution Act, 1982).

Neither of those promises turned out to be true. In fact, UNDRIP itself does contain rights that are significantly different from those recognised under section 35 — both procedurally and substantively.

The government’s ‘own goal’ became startlingly apparent in December 2025, when the BC Court of Appeal (BCCA) determined that the real effect of DRIPA, coupled with section 8.1 of the Interpretation Act, introduced in 2021 by David Eby when he was Attorney General, was that UNDRIP could be enforced by BC courts as ‘the law’ in the province, with immediate effect.

The initial response from the Eby government was shock and outrage, with the Premier commenting negatively about the judgment and insisting that urgent’ changes would be made to DRIPA to undo the conclusions of the court about the legal enforceability of UNDRIP.

The First Nations Leadership Council (FNLC) immediately pounced on the Premier, letting him know in no uncertain terms that, now that UNDRIP was legally enforceable in BC, they would not countenance any attempt by the government to undo the legal outcome of Gitxaala, citing the requirement for their consent for that to occur (see Article 19 of UNDRIP) which they clearly indicated would not be forthcoming.

What happened next was a journalist’s dream come true, as the Premier flip-flopped no less than six times in trying to convince his ‘co-governing’ FNLC ‘partners’ and his own caucus to accept that legislative changes were necessary and urgent to deal with the potentially huge ramifications created by Gitxaala.

In his latest flip-flop, the Premier accepted the highly questionable advice of his Attorney General to forgo any legislative changes until some form of agreement was reached with the FNLC. They gave themselves six months (or possibly longer) to accomplish what is likely to be an impossible task.

Meanwhile, the slate of litigation against the government that now cites UNDRIP grows daily, including challenges by American tribes. There is nothing legislatively in place to prevent courts from invalidating any BC laws they consider to be incompatible with UNDRIP.

While the BC government has sought leave to appeal that decision to the Supreme Court of Canada, that is a time-consuming and legally uncertain process, as is the subsequent appeal if the Court decides to grant leave — which it may well decline to do.

As of today, the economy and legislative authority of the BC government appear to be rapidly deteriorating as the full ramifications of UNDRIP being positive law in BC unfold.

Clearly, this whole sorry mess needs to be dealt with in the legislature prior to the end of the current session and dealt with conclusively.

Unfortunately, the activist FNLC, now effectively co-governing the province while purporting to represent just 2 percent of the population, is apparently not prepared to allow that to occur. As a result, the political and economic disaster that is unfolding in British Columbia worsens by the day.

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.