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).
The Declaration Act Secretariat’s core functions are to support the advancement of Section 3 of the Declaration on the Rights of Indigenous Peoples Act (Declaration Act), which mandates the Province to take all measures necessary to ensure provincial laws are aligned with the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), doing so in consultation and co-operation with Indigenous Peoples. Meeting this obligation is an essential pathway for the recognition and implementation of title and rights, including treaty rights, and for the survival, dignity and well-being of Indigenous Peoples as protected under Section 35(1) of the Constitution Act, 1982.
British Columbia became the first jurisdiction in Canada to lead these legislative transformations and there is much to be learned from the ongoing work. The core of alignment of laws work is co-development, co-operation, co-drafting and consultation with Indigenous Peoples. The Declaration Act Secretariat (the Secretariat) continues to identify the systemic and cultural shifts needed to enable success: partnering with Indigenous Peoples and the B.C. public service, applying new learnings from past feedback and further evolving existing policies, processes and systems.
Provincial, National and Global Leadership
The Secretariat’s mandate is to ensure alignment with the UN Declaration. While delivering on this mandate, the Secretariat benefits from maintaining connection to those who developed it, as well as others across Canada and the world who are similarly involved in its implementation.
The Province has worked with the federal government, the Expert Mechanism on the Rights of Indigenous Peoples and the University of British Columbia in pursuit of the full implementation of the Declaration Act. On behalf of the Attorney General and the Minister of Indigenous Relations and Reconciliation, the Province submitted a formal response to the call by the United Nations Office of the High Commissioner for Hum.an Rights for inputs on establishing effective mechanisms at the national and regional levels for implementing the UNDeclaration. This continuing work is an important opportunity for the impact of B.C.’s work to be included in the official reports of the Human Rights Council, and for B.C. to partner with other states working towards similar goals, as well as to further showcase B.C. as a global leader.
The UN Declaration is the most comprehensive instrument detailing the rights of Indigenous Peoples in international law and policy, containing minimum standards for the recognition, protection and promotion of these rights. It establishes a universal framework of minimum standards for the survival, dignity, wellbeing and rights of the Indigenous Peoples.
The Declaration addresses both individual and collective rights; cultural rights and identity; rights to education, health, employment, language, and others. It outlaws discrimination against Indigenous Peoples and promotes their full and effective participation in all matters that concern them.It also ensures the right to remain distinct and to pursue their own priorities in economic, social and cultural development. The Declaration explicitly encourages harmonious and cooperative relations between States and Indigenous Peoples.
Source: UN Declaration on the Rights of Indigenous Peoples | OHCHR
Aligning Laws with the UN Declaration
In 2023/24, the Province continued to develop and pass legislation consistent with the requirements of Section 3. The Secretariat’s contribution spans formal input and advice on consultation and co-operation with Indigenous partners, informal troubleshooting, review of materials and issues resolution.
Below are some examples of key legislation passed that incorporated the UN Declaration and was effectively developed in consultation and co-operation with Indigenous Peoples:
Bill 31 Emergency and Disaster Management Act (November 2023)
On November 8, 2023, the Emergency and Disaster Management Act (EDMA) came into force, replacing the Emergency Program Act. The EDMA reflects the realities of the modern world including global pandemics, security threats and climate change. Guided by the United Nations Sendai Framework for Disaster Risk Reduction it responds to the four phases of emergency management: mitigation, preparation, response and recovery.
The EDMA is also an important step in aligning the Province’s laws with the UN Declaration as it:
- Recognizes Indigenous Peoples’ inherent rights of self-government, including the authority to make laws in relation to emergency management;
- Establishes a framework for agreements between Indigenous governing bodies and other authorities that can help advance shared decision-making and co-ordination;
- Authorizes agreements with Indigenous governing bodies to coordinate the exercise of emergency powers as well as plans, policies and programs related to the response and recovery phases; and
- Includes engagement provisions that require municipalities and regional districts to consult and co-operate with Indigenous governing bodies and incorporate Indigenous knowledge and cultural safety across emergency management practices.
“The alignment of B.C. policies and laws with the United Nations Declaration on the Rights of Indigenous Peoples is a monumental undertaking. Having an Indigenous-led central agency mandated to drive this work is an invaluable key to success. Their guidance and advocacy within government to shift systems and culture is work that has the potential to transform the landscape in the province for years to come. We have appreciated building relationships with the Secretariat to support the implementation of Section 3 through a distinctions-based approach that recognizes and enforces modern treaty rights in B.C.”
Alliance of BC Modern Treaty Nations
Given this scope of change and the length of the legislation, appropriate engagement on the EDMA took time. In 2019 and 2020, the Province undertook a broad public engagement process that included meetings with First Nations, Indigenous organizations and other partners in emergency management. In 2022, focused work with First Nations partners began. This included regular sessions with technical teams representing the First Nations Leadership Council and member Nations of the Alliance of BC Modern Treaty Nations, First Nations and Indigenous technical organizations and service providers to discuss the core policy interests underpinning the legislation and subsequently review drafts of the legislation.
The Province is now developing regulations in consultation and co-operation with First Nations, including member Nations of the Alliance of BC Modern Treaty Nations, and informed by engagement with Indigenous organizations, local authorities, critical infrastructure owners, service providers, emergency management practitioners, and the public. The Province has also released a new Indigenous engagement requirements document that provides guidance for implementing the engagement provisions of the EDMA. For more information, please see Theme 1, Action 1.10.
Bill 5 Child, Family and Community Service Amendment Act (March 2024)
In November 2022, significant changes were made to the Child, Family and Community Service Act (CFCSA) to align with the UN Declaration. This was the first legislative initiative to enable joint and consent-based decision-making agreements as described in section 6 and 7 of the Declaration Act.
In the early work to implement these provisions, Indigenous partners identified a number of key issues for clarification and amendment to strengthen opportunities for the exercise of inherent Indigenous jurisdiction. Working in consultation and co-operation with Indigenous partners, communities and service providers, the Ministry of Child and Family Development undertook a number of multiple-partner engagement sessions to listen to the challenges, problem-solve solutions and develop legislative amendments together.
The resulting amendments expand the scope for joint and consent-based decision-making agreements in Indigenous child and family services and broaden the definition of “Indigenous child”. This ensures that Indigenous governing bodies not yet exercising their inherent jurisdiction have a pathway to identify their children, provide more culturally relevant care and preserved connection to culture. These amendments to the CFCSA also ensure that appellate courts can hear matters under Indigenous law. Bill 38 introduced a pathway for Indigenous governing bodies to refer to the provincial court for dispute resolution under their Indigenous law, which is the same dispute resolution process available in the CFCSA. The addition of appellate courts will ensure that, where an Indigenous governing body opts to use provincial courts for dispute resolution, the full provincial appeals process is available to families. These amendments further support the multijurisdictional child and family services model and bring the Act closer to alignment as intended under the Declaration Act. For more information, please see Theme 4, Action 4.17.
“This is a much-needed update to the emergency management regime in B.C. First Nations maintain their rights to decide, prepare, mitigate and recover from emergencies. B.C. needs to ensure their laws and regulations will work in partnership with First Nations governments. The BC Assembly of First Nations supports the inclusion of First Nations in all areas of emergency management. This has been another historic year for wildfires and we always are the first to feel the impacts from the climate emergency.”
Terry Teegee, Regional Chief, BC Assembly of First Nations.
Bill 40 School Amendment Act (November 2023)
The School Amendment Act supports better education outcomes for First Nations and other Indigenous students attending provincial public schools, in part through hardwiring processes for effective relationships between boards of education and First Nations.
The amendments ensure that First Nations and Treaty First Nations have the option to apply a Model local education agreement (Model LEA) with boards of education should a First Nation request it, setting out processes for information sharing, collaboration and decision-making. The amendments also take a distinctions-based approach, requiring all boards to establish an Indigenous education council (IEC) in their school districts to ensure decisions being made for Indigenous students are made by Indigenous organization representatives and people. This amendment also embeds continuous consultation and co-operation among school districts and IECs, prioritizing the views of local First Nations, their languages, histories and cultures. Finally, the amendments ensure that First Nation students who live on-reserve or Treaty lands have priority to attend public schools designated by their First Nation through the First Nation school of choice provision.
Furthermore, these amendments support reconciliation commitments with the intent to better meet the needs of community and reflect respect for inherent rights and jurisdiction in the education sector. LEAs were a specific commitment -set out in the BC Tripartite Education Agreement (BCTEA), the Declaration Act Action Plan, and First Nations school of choice evolved from LEAs. The requirement to establish IECs is a commitment in the Declaration Act Action Plan. Consultation and co-operation continues in the implementation of the Bill. For more information, please see Theme 1, Action 1.06, and Theme 4, Action 4.03.
“Today is an important day for First Nation learners and the provincial education system in B.C. These changes to the School Act are aimed at improving First Nation student learning outcomes through effective relationships and processes that respect the inherent authority and role of First Nation governments, parents and communities in the education of their children and youth…First Nations control of First Nations education underpins the First Nation education system we have spent three decades building in B.C. This work includes ensuring the provincial public school system is responsive to, and respects and incorporates the perspectives of, First Nations to better support this student population in a meaningful and appropriate way.”
“Indigenous students, particularly First Nation students living on reserve, face systemic barriers that result in inequitable outcomes in the K-12 system, and so the changes in this suite of amendments represent systemic, transformative and welcome changes.”
Tyrone McNeil, President, First Nations Education Steering Committee (FNESC).
Capacity Growth
In addition to supporting individual ministries and legislative and policy initiatives, the Secretariat plays a key role in supporting the overall capacity of the provincial public service – and key external agencies and partners – to undertake this work.
One way the Secretariat advances this capacity growth is through developing tools, guidelines and similar resources to support alignment of laws, consultation and co-operation, and the key enabling conditions needed for lasting change and system shifts. This year, the Secretariat has worked with Indigenous partners and ministries across government to initiate the development of consultation and co-operation guidance and support tools, and a broader emerging change leadership framework. The Secretariat has also initiated the development of metrics, indicators, and case studies which will more clearly illuminate progress and spread key learnings and successful practices.’
Another way that the Secretariat supports capacity is through consistent participation in cross-government committees at the executive level. These committees are a key forum through which legislative and policy initiatives are shaped and advanced through their development. Participation in them ensures Section 3 obligations are represented, and perspectives shared by Indigenous peoples and partners are threaded throughout provincial government business.
There is significant interest in the Secretariat’s work and the alignment of laws, and Secretariat staff invest time and energy in delivering education sessions to internal and external audiences. Over the past year, the Secretariat facilitated over 28 presentations to internal and external groups, including: ministries, provincial councils, Crown corporations, board leadership, local governments and more. These education sessions provide critical awareness and understanding of the UN Declaration and everyone’s obligations to advance Indigenous human rights, including the specific obligations under the Declaration Act.
“The implementation of the interim approach has presented us with a valuable opportunity to work with government in a way we have never seen before. The Secretariat as a driver of the interim approach and alignment of laws work has played an important role in First Nations’ participation in government process. As a result, First Nations are engaging with government on more legislative pieces to align with the UN Declaration.”
Grand Chief Stewart Phillip, President, Union of BC Indian Chiefs
Relationship Building
Alignment of laws work must be done in true partnership between the Province and Indigenous Peoples. The development of genuine relationships and trust takes time. In some places, these relationships already exist but in many sectors and spaces, they are just forming. The Secretariat serves a critical interlocutor role, supporting the public service and Indigenous partners to advance substantive issues through policy advice, and facilitate partnership and collaboration to mitigate issues.
The co-development of legislation, policies and consultation and co-operation is a significant task that requires considerable capacity and resources. The launch of the Declaration Act Engagement Fund has provided for First Nations partners to invest in Declaration Act engagement work in a way that meets their needs. This includes work specific to engagement with the Province on alignment of laws, as well as consultation and co-operation.
“The launch of the Declaration Act Engagement Fund gives First Nations the opportunity for much needed capacity funding to engage with government. This supports First Nations participation in the critical work of implementing the Declaration Act and the alignment of laws – and upholding the values
Cheryl Casimer, Political Executive, First Nations Summit
of the United Nations Declaration on the Rights of Indigenous People.”