BCAFN
Coalition of BCAFN,  First Nations Summit (FNS) and Union of BC Indian Chiefs (UBCIC) 

Case: Gitxaala/Ehattesaht
Firm: BCAFN
Outcome: hearing held at BC Supreme Court in December 2022.
Awaiting ruling

The BC Assembly of First Nations, First Nations Summit, and Unions of BC Indian Chiefs intervened in the Gitxaała Petition, and potentially also the related but separate petition filed by Ehattesaht First Nation (the “Ehattesaht Petition”), as the First Nations Leadership Council coalition. 

The Ehattesaht Petition was filed on June 9, 2022, after the BCAFN, FNS, and UBCIC submitted an application for funding. The Ehattesaht Petition replicates most of the claims made and relief sought in the Gitxaała Petition, but the petitions are not identical, nor have they been joined or consolidated. 

 Accordingly, the BCAFN, FNS, and UBCIC intervening in the Ehattesaht Petition, will trigger the need to prepare a second application for leave to intervene that addresses the differences in the petitions and the groups’ reasons for intervening in both. This will result in increased time and costs. The First Nations Leadership Council is comprised of the political executives of each organization and the group works together to develop coordinated approaches to issues relevant to First Nations communities throughout the province. 

The First Nations Leadership Council and its members have been deeply involved in advocacy and government consultation pertaining to the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) 2 and aims to the co-development of the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”). 

Because these three organizations have spent years working together on the negotiation, drafting, and implementation of DRIPA, they are well-positioned to provide the court with guidance on how the court interprets, applies, and enforces UNDRIP, and the Province’s obligation under DRIPA to take all measures necessary to ensure its laws are consistent with UNDRIP. DRIPA has yet to be applied by the court to hold the government accountable for laws that violate Aboriginal rights and title. 

However, both petitions put this squarely at issue with respect to the Mineral Tenure Act. A robust and meaningful application of DRIPA will be a significant development in reconciliation, and how First Nations are supported in the exercising of their inherent rights and title, including the right to free, prior and informed consent. 

 As such, these petitions have the potential to significantly impact not only the rights of Indigenous communities in British Columbia, but also the First Nations Leadership Council’s ongoing negotiations and work with the Province of British Columbia on DRIPA implementation. 

The BCAFN, FNS, and UBCIC wish to continue to speak with a unified voice, as the First Nations Leadership Council, on matters affecting DRIPA, including the petitions; however, each of these organizations is distinct and brings individual perspectives to DRIPA, its implementation, and the petitions themselves.

Accordingly, while BCAFN, FNS, and UBCIC will be intervening as the First Nations Leadership Council in one or both petitions, each organization has a distinct perspective which requires the involvement of not just our firm, but also counsel for the individual organizations who have extensive experience working with their respective clients and the First Nations Leadership Council. Further, the nature of the arguments raised in the petitions, and the arguments regarding DRIPA in particular, are exceptionally complex and will require more time and resources to develop than a typical intervener submission. 

DRIPA represents the confluence of domestic law and conventional and/or customary international law, attracting novel arguments including those regarding: 

(i) whether DRIPA brought the United Nations Declaration on the Rights of Indigenous Peoples into full force and effect or whether it is merely aspirational and an “interpretive aid”; 

(ii) whether DRIPA has already ushered in a new, post-Haida era in which the Province has a statutory duty to consult with Indigenous peoples at the standard of free, prior, and informed consent; 

(iii) how the principle of conformity ought to be applied in this case; and (iv) DRIPA’s status as quasi-constitutional legislation. This is all encapsulated by the application of the BCAFN, FNS, and UBCIC which may have distinct and perhaps even divergent views on these arguments, all of which will require a significant amount of research and development, and none of which have been raised by the parties to either petition.

Accordingly, notwithstanding the fact that the First Nations Leadership Council will speak with a unified voice in the application(s), the fact remains that it is a coalition populated by three distinct organizations who will require the same level of attention and input as three clients with distinct proceedings for us to prepare arguments on the extremely complex and novel issues identified above. 

This intervention is assisting the relevance of reconciliation through the DRIPA legislation here in BC, because of this it is also helping our Gitxaala and Heiltsuk campaigns. It may also have impacts on Attawapiskat, Neskantaga, and Grassy Narrows due to its relevance in the ON courts.