Good morning,

On Monday, B.C. Premier David Eby blinked. So now what?

Late last year, the B.C. Court of Appeal ruled the province’s mineral claims regime is “inconsistent” with the government’s legislation to uphold the UN Declaration on the Rights of Indigenous Peoples.

B.C.’s law enacting the declaration – the Declaration on the Rights of Indigenous Peoples Act, or DRIPA – was passed unanimously in 2019, despite a dozen years of reluctance in Canada to sign on to the UN declaration.

With DRIPA, the B.C. government believed it had overcome the past caution of the Stephen Harper Conservative government in Ottawa and Christy Clark’s former BC Liberal government. Both leaders were concerned the UN declaration could give Indigenous groups a veto over resource projects.

“I’m very excited about putting to rest the notion that there’s a veto involved here,” then-premier John Horgan said after the bill’s introduction. “It’s about having certainty, and the first order of business is to ensure that the people who inhabit the lands and have inherent rights and title to those landscapes are full participants in a discussions about development.”

But the Gitxaała challenged B.C.’s Chief Gold Commissioner over the province’s automated online registry that allowed mineral claims on Crown land. The Gitxaała First Nation argued the system was inconsistent with rights recognized in DRIPA and last December, the appeal court agreed.

A spokesman for the mining industry said the ruling could seriously jeopardize the province’s plans to jump-start mining projects – plans crucial to B.C.’s economic development. That strategy, in turn, is crucial to getting the province out of the fiscal hole of a record-breaking deficit and a cascade of credit-rating downgrades.

It was the second major win for Indigenous groups in British Columbia last year. In the Cowichan decision, the B.C. Supreme Court concluded that Aboriginal title was superior to fee simple title, throwing the rights of private landowners in an area in Richmond into question.

Eby made amending DRIPA a top priority for his government in this sitting. DRIPA was intended to bring all of B.C. laws into compliance with the UN declaration, but it was a process that was supposed to take decades. The Gitxaała judgment, he said, would force change all at once.

Unsurprisingly, B.C. Indigenous leaders – who were at the table when the legislation was drafted – were adamantly opposed to any amendments and were especially angry about the tight timeline for change.

The originally proposed amendments, according to a draft of the changes obtained by The Globe, would remove language that commits the government to bring the province’s laws in compliance with the UN declaration, replacing it with a less stringent requirement to work toward aligning B.C. laws with the principles of UNDRIP. It is a shift from “must” to “may.”

But after meeting with angry Indigenous leaders, Eby announced his government wanted instead to suspend portions of DRIPA for three years.

“We have to do something,” he said. “A pause is, in my opinion, hopefully the least invasive way of addressing government’s concern.”

He declared the vote on the changes would be a confidence motion in the legislature – a risky, if not reckless, move. The NDP has a one-seat majority and a confidence motion would mean Eby would have to win the majority of votes or his government would fall and an election would ensue.

It was an audacious commitment, no doubt meant to pressure his caucus into unity. The NDP caucus proudly includes three Indigenous MLAs. The Opposition BC Conservatives want DRIPA repealed entirely and permanently, so there were no votes to be had from them. The Greens have said they will listen to Indigenous leaders, who are adamantly opposed.

On Monday, Eby told reporters Monday the vote on the changes, which has been delayed, would not be a confidence motion. He said the Indigenous MLA for Vancouver-Mount Pleasant, Joan Phillip, told him she could not vote for any amendments.

“That obviously changes the math for us,” he said.

Still, if Eby’s assessment of the Gitxaała ruling is correct, DRIPA has caused more uncertainty for resource development in the province, not less. And it will be a long time before the Supreme Court of Canada decides on B.C.’s appeal of the ruling.

“This much is certain: B.C.’s reconciliation agenda is in tatters,” wrote The Globe’s editorial board.

This is the weekly British Columbia newsletter written by B.C. Editor Wendy Cox. If you’re reading this on the web, or it was forwarded to you from someone else, you can sign up for it and all Globe newsletters here.