Geoffrey Moyse: The NDP refuse to fix DRIPA themselves

Instead, they are wasting public resources at the Supreme Court of Canada.

(Premier David Eby staring at a totem pole. Photo credit to the British Columbia Government.)

On 5 December 2025, the B.C. Declaration on the Rights of Indigenous Peoples Act, or DRIPA, took on new and unfortunate legal significance that has led to a whole new level of legal risk in British Columbia. It was on that date that the B.C. Court of Appeal delivered judgment in Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430.

Unfortunately for the B.C. NDP government, the B.C. Court of Appeal determined in Gitxaala that, when properly interpreted, DRIPA, coupled with an amendment to the Interpretation Act put forward by David Eby in 2021, when he was Attorney General, has brought the articles of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, into the positive law of British Columbia.

Put simply, this means that a provincial statute apparently never intended by the government to be subject to judicial oversight has now become fully justiciable and allows challenges to be brought through the courts against any B.C. laws that are alleged to be inconsistent with UNDRIP. As a result, virtually any B.C. law can be rendered of no force or effect if found by a court to be inconsistent with UNDRIP.

The initial response to Gitxaala 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 Premier described the results of the judgment as an ‘existential threat’ to the province. The government then announced that it would seek leave to appeal Gitxaala to the Supreme Court of Canada (SCC).

On Thursday, 21 May 2026, the SCC granted the province leave to appeal.

Let’s be crystal clear about the B.C. Declaration on the Rights of Indigenous Peoples Act, 2019, or DRIPA.

This is a piece of provincial legislation put in place by the Horgan government in 2019 to align all of British Columbia’s laws with the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.

As a piece of provincial legislation, DRIPA can be amended, suspended, or repealed by the B.C. legislature. What DRIPA says and what legal effect it has can be determined entirely by the legislature. If the legislation is causing legal problems, those can be fixed through amendment, suspension, or repeal. Simple.

While Canada already possessed the most comprehensive protections for Aboriginal and treaty rights anywhere in the world under its Constitution, the B.C. NDP and, later, the Trudeau administration in Ottawa decided it would be a good idea to effectively override Section 35 of the Constitution Act, 1982 as the appropriate framework for achieving reconciliation in B.C. and Canada, and replace it with UNDRIP.

As former Attorney General Jody Wilson-Raybould has correctly noted in the past, ‘… simplistic approaches, such as adopting the Declaration as being Canadian law, are unworkable …’

The concept that UNDRIP should form the framework for reconciliation in Canada came directly from the Calls to Action of the Truth and Reconciliation Commission in 2015. It is likely that this was the basis for the enthusiastic adoption of DRIPA (and thus UNDRIP) by the government of British Columbia in 2019, followed by the government of Canada in 2021.

The NDP government intended that its adoption of UNDRIP was to be accomplished through a process carried out by way of a closed and totally secretive alliance of provincial officials and the B.C. First Nations Leadership Council (FNLC). It involved those parties, and no one else, sitting down to ‘co-develop’ interpretations of the various unimaginably vague articles of UNDRIP and comparing them to existing and forthcoming B.C. laws, with the goal of amending the latter to achieve conformity with the former.

According to the NDP government, it was never their intention that this process be subjected to court oversight, despite then Attorney General Eby’s amendments to the B.C. Interpretation Act stating:

8.1(3) Every Act and regulation must be construed as being consistent with the Declaration.

On 20 April, Rob Shaw detailed on CHEK News the history of the Premier’s and his Attorney General’s attempts to deal with the Court of Appeal decision and the apparently huge potential legal liability that the Premier himself admitted it creates:

“Eby pushed back on questions about whether the continued changing of his position on DRIPA — from saying it was ‘urgent’ in January to proposing to amend it, then suspend it, then make it a confidence motion, then back down from that confidence motion, then abandon the changes entirely — has undermined public confidence in his leadership.”

Flip-flop, flip-flop, flip-flop — no less than six times in a row.

The FNLC immediately pounced on the Premier, letting him know 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 (under the terms of UNDRIP itself), which they indicated in no uncertain terms would not be forthcoming.

Premier Eby and Attorney General Sharma now found themselves caught in the middle of a disagreement with the FNLC, which is adamant that it will accept no changes to DRIPA whatsoever and insists that the government live with the result of UNDRIP effectively being positive law in British Columbia — with all of the attendant significant legal liability, as admitted by Eby himself, that will engender.

And what if the Premier had refused and proceeded with his amendments or suspensions, which he had originally said were ‘non-negotiable', as the legislature has every right to do in the public interest?

In a news release dated 9 April 2026, the FNLC made it abundantly clear what would happen if the Premier proceeded to amend or suspend portions of DRIPA without their consent:

‘If the government proceeds without the free, prior and informed consent of First Nations, the FNLC and First Nations will pursue every available avenue, legal, political, and through direct action to defend First Nations’ rights…’

The following then appeared in a letter sent to all MLAs in the House by the FNLC:

‘Any attempt…will be met with collective resistance from First Nations and allies across the province.’

Since 2019, when DRIPA was passed, the FNLC has been given the power under that legislation to effectively decide what the government can and cannot choose to do in legislation, regulation, or even policy. Some commentators, including myself, have pointed to the fact that this effectively amounts to enabling the co-governance of the province by the government and the FNLC — a conclusion confirmed publicly by the Regional Chief of the AFN, Terry Teegee.

So powerful is that apparent practical and possibly legal veto over provincial legislative supremacy — particularly when backstopped by actual threats of ‘direct action’ and ‘collective resistance’ against the government and, presumably, all British Columbians — that it was enough for Attorney General Sharma to ‘tap the Premier on the shoulder’ and convince him to stand down in favour of six more months of talks with the FNLC, or longer.

Now the SCC has indicated that it will hear the province’s appeal in Gitxaala — an outcome which led the Premier and his Attorney General to state that they are ‘very pleased’ the court has chosen to do so. This, despite the fact that there is no way of knowing how the SCC will decide such an appeal.

It is just as possible that it may choose to affirm the judgment of the majority of the B.C. Court of Appeal as it is that it will choose to overturn it. Such an outcome would clearly require the Eby government to move to amend the legislation. More worrisome is the fact that the Eby government has no idea what else the country’s highest court may say about the legal enforceability of UNDRIP generally, or specifically in the context of the province’s legislative authority.

Unfortunately, the reality of an appeal process in the SCC is also that it takes a considerable amount of time to complete and for a judgment to issue from the Court. It will use up considerable judicial and court resources and will cost the B.C. taxpayer a large amount of money. It could be well over a year, or perhaps longer, before a judgment is rendered by the SCC in Gitxaala.

In the meantime, we have a Premier and his Attorney General choosing to allow what they have stated to be virtually unlimited provincial legal liability to continue — resulting from UNDRIP being positive law in B.C. This liability can now continue for six more months or possibly well over a year, because they are afraid to confront the FNLC’s effective veto — through threats and intimidation — of their legislative authority, rather than moving quickly to protect the interests of 5.7 million other British Columbians.

More problematically, we have an NDP government preparing to waste the limited and valuable time and resources of the highest court in Canada by pursuing an appeal of Gitxaala, when this whole debacle could have been solved easily and readily in the provincial legislature during its recently ended sitting.

To repeat, DRIPA is a piece of provincial legislation that can be amended, suspended, or repealed by the B.C. legislature. What DRIPA says and what legal effect it has can be determined entirely by the legislature. There is absolutely no need at all for an appeal to the SCC to deal with a legislative problem that is easily fixed with the proper political will. Clearly, the proper political will is missing, except for the will to continue to try to prop up a piece of legislation that never should have been conceived in the first place.

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.