Alignment of Laws (Section 3)
Section 3 of the Declaration on the Rights of Indigenous Peoples Act (Declaration Act) requires the Province of B.C., in consultation and co-operation with the Indigenous Peoples in B.C., to take all measures necessary to ensure the laws of B.C. are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration).
Including this obligation, the Declaration Act recognizes that transforming legislation is essential for the recognition and implementation of title and rights, including treaty rights, and for upholding the minimum standards in the UN Declaration for the survival, dignity and well-being of Indigenous peoples.
This work of transforming laws must be done in partnership between the Province and Indigenous Peoples, and requires new learning, knowledge and patterns. This includes new learnings within the B.C. public service, including a deeper understanding and respect for Indigenous legal orders. This work also requires that we co-develop clear and practical shared understandings of consent, co-drafting, co-development, consultation and co-operation. As this is new work, we will continually be able to learn and do it better through time. For example, we have learned over the past year that co-development of legislation takes substantial work, and places significant burdens on the time and capacity of Indigenous Peoples – and as such, resources have been identified for the co-development of laws, policies and practices.
Progress in 2022/23
Over the past year, progress has been achieved both in the structural changes necessary to transform laws – the processes and capacity to carry out this work – and in the transformation of individual pieces of legislation to be consistent with the UN Declaration.
Creation of the Declaration Act Secretariat
Recognizing that embedding the UN Declaration into provincial laws, policies and practices requires significant shifts in legislative and policy development across the public service, the Province established the Declaration Act Secretariat as a centralized and dedicated body to drive this whole-of-government work.
In March 2022, Jessica Wood/Si Sityaawks was appointed to establish the Declaration Act Secretariat, and was promoted to Deputy Minister in March 2023. Over the 2022/23 year, the Declaration Act Secretariat recruited staff to critical positions, with a focus on Indigenous-exclusive hiring. In January 2023 Priscilla Sabbas-Watts/c̓aʔaa joined the Secretariat as Assistant Deputy Minister of Legislative Engagement and Transformation, and a number of executive director roles have been filled and will begin in spring 2023.
In the coming year, the Secretariat will continue to expand its capacity to guide and direct the Province in meeting its obligation to ensure legislation is consistent with the UN Declaration, and is developed in consultation and co-operation with Indigenous Peoples. The intention is for the Secretariat to be fully staffed in 2024 exclusively by Indigenous people.
“Meaningful implementation of the Declaration Act requires whole-of-government changes in systems, beliefs and patterns of behaviour. Creation of the Declaration Act Secretariat as a central agency within the Province and ensuring that this team is led by Indigenous people is starting to positively effect this required change. The Interim Approach is a key example of the impact of the Secretariat’s work, and a promising signal that constructive transformation is within reach.”Cheryl Casimer, Political Executive, First Nations Summit
Shifting mindsets and increasing capacity within the public service
The capacity of the public service must evolve in order to effectively carry out the work of transforming laws and policy in partnership with Indigenous Peoples. The Secretariat plays a key role in this process by undertaking cross-government education and participating in key decision-making processes that enhance understanding of the Province’s obligations under the Declaration Act and Interim Approach, the rights of Indigenous Peoples as described in the UN Declaration, and the history of relations between the Crown and Indigenous Peoples. More broadly, given that many public servants are now working with Indigenous people in ways that haven’t been considered comprehensively until now, the Secretariat also works to shift mindsets, disrupt past assumptions and create new space for Indigenous Peoples to participate constructively on matters that affect their rights.
There is significant interest in this work across the public service. Over the past year, the Secretariat delivered close to twenty internal presentations to approximately 1,500 senior officials that represent all ministries and sectors. A significant number of presentations were also made to key external audiences and organizations, including to Indigenous leaders and organizations who provided clear feedback on the Secretariat’s priorities and ways to further embed the transformative change potential of section 3 of the Declaration Act.
Additionally, the Secretariat participates in several cross-government decision-making committees which provides the opportunity for involvement and feedback on key legislation and policy decisions as they move through the provincial process.
Making B.C.’s laws consistent with the UN Declaration
There are currently dozens of projects underway to ensure provincial laws and policy are consistent with the UN Declaration. This past year, two significant pieces of legislation were passed by the Legislature and reflected consultation and co-operation efforts with Indigenous Peoples as described in the Interim Approach
Bill 36 Health Professions & Occupations Act
The Health Professions and Occupations Act (HPOA) received royal assent in the BC Legislative Assembly on November 24, 2022. With this legislation, the Province formally hardwires anti-discrimination measures, restorative processes and trauma-informed practices directly into health profession legislation.
This was achieved by ensuring consultation and co-operation with Indigenous Peoples throughout the process. In total, twenty-six co-development sessions were held between the Ministry of Health staff, First Nations and Métis organizations and First Nations governments. Additionally, the Ministry engaged with Indigenous health teams and front-line staff in the Health Authorities, and with Indigenous advisory bodies established by the Ministry of Health.
With 645 clauses in the new legislation, there was a significant amount of policy analysis, legal analysis, and expertise required to ensure coherence and consistency. With an urgent need for modernized legislation, those involved in drafting and reviewing the legislation had significant pressures to meet tight timelines. This task was a massive undertaking, and particularly challenging as policy evolved in response to the extensive feedback received, including from Indigenous Peoples. This feedback ultimately strengthened the Act significantly, which now upholds consistency with the UN Declaration in many ways, including:
- Making it clear that Indigenous people have a right to be free of discrimination based on their Indigenous identity when receiving health services in B.C., and that discrimination is a form of professional misconduct.
- Guiding principles that must be reflected in how decision-makers carry out their duties and powers under the act include supporting and promoting UNDRIP, and the need to address Indigenous-specific racism.
- Including anti-discrimination as an objective for how regulators conduct regulatory processes, and how health practitioners provide health services.
- Enabling the use of Indigenous practices, including restorative processes and Indigenous support workers, in health service delivery, dispute resolution, and investigation and complaints processes.
- Establishing requirements for consultation and co-operation with Indigenous Governing Bodies on a range of decisions, oversight processes and development of standards.
“For too long, colonialism has been the basis for government’s approach to law and policymaking, disregarding the rights of Indigenous Peoples. The interim approach establishes a better path forward to recognize that our laws must not only respect Indigenous laws and customs, but also be implemented respectfully and collaboratively. This approach is a critical part of our ongoing work to advance meaningful reconciliation in partnership with Indigenous Peoples and reflects our commitments under the Declaration Act.”Niki Sharma, Attorney General
Bill 38, Indigenous Self-Government in Child and Family Services Amendment Act
Bill 38 amended the Adoption Act and the Child, Family and Community Services Act (CFCSA) especially to enable new ways to put the UN Declaration and the Declaration Act into action and to align with the federal Act respecting First Nations, Inuit and Métis Children, Youth and Families. These amendments move the child welfare system in B.C. toward a multi-jurisdictional model that promotes prevention supports and respecting and facilitating connections to communities and culture, resulting in healthier lifelong outcomes.
Co-development of this legislation took place through 63 meetings with First Nations and Métis organizations, the Alliance of BC Modern Treaty Nations, four Indigenous governing bodies preparing to assert jurisdiction over child and family services (Splatsin, Sts’ailes, Cowichan, and Gwa’sala-‘Nakwaxda’xw), and fifteen First Nations governments. These meetings took place throughout the process, from policy development to introduction of the bill.
This process resulted in legislation that:
- Recognizes that the CFCSA must be administered and interpreted in accordance with the inherent right of self-government with respect to child and family services.
- Enables Indigenous governing bodies to assume jurisdiction over child-welfare services provided to an Indigenous child in accordance with Indigenous laws, and enables information sharing between the Province and Indigenous governing bodies.
- Establishes a new Indigenous child-welfare director position in the Ministry of Children and Family Development to provide guidance and advice to CFCSA directors and their delegates in navigating a multi-jurisdictional child and family services model.
- Enables joint and consent-based agreements to be made in accordance with the Declaration Act for relevant powers under the Adoption Act and the CFCSA.
This was the first time MCFD took steps towards a co-development model with Indigenous partners for legislative development. Partners faced challenges in this process, particularly due to the accelerated timeline which made it more difficult to ensure that engagement was effective and meaningful and that all decisions were transparent to everyone involved. Overall, this process required greater flexibility than any past legislation projects and this key takeaway will be built into legislation and regulation projects in the future.