Vaughn Palmer: Tiny law, huge implications, little debate

© Provided by Vancouver Sun David Eby, attorney general.

VICTORIA — Overlooked during the NDP’s end-of-session rush to expedite its legislative agenda was a small bill with far-reaching implications.

Bill 29 ran a mere three pages, including cover and explanatory notes.

It constituted one of the first substantive moves by the government to amend provincial laws to incorporate the principles of the United Nations Declaration on the Rights of Indigenous Peoples.

The amendment in question was to the Interpretation Act, which provides guidance for the interpretation of laws where the meaning is not clear.

Bill 29 added a clause that said every “Act and regulation must be construed as being consistent with the Declaration on the Rights of Indigenous Peoples Act.”

The latter being the Act whereby two years ago, the legislature unanimously enshrined the 46 articles of the UN Declaration and set in motion an action plan to incorporate them into provincial law.

The reference to “every act and regulation” made it sound as if the New Democrats were putting the rewrite on the fast track.

But it fell to Attorney-General David Eby to explain what the amendment to the Interpretation Act does and does not mean.

“It advances the interpretation of the laws of British Columbia in alignment with the declaration, but does not itself incorporate the rights and principles in the UN declaration into the laws of B.C. directly or give it constitutional status,” said Eby.

“If a court considers a provincial law to be inconsistent with the UN declaration, this amendment does not allow the court to read in, read down or find that law to be of no force or effect,” said Eby.

In those cases it would be up to the government to rewrite the offending law or regulations in consultation with First Nations.

So much for what it doesn’t do.

What it does do is “provide direction on how to resolve ambiguities in the law,” continued the attorney-general. “It directs those who interpret provincial acts and regulations to interpretations that are consistent with it.”

Speaking for the Opposition, B.C. Liberal MLA Mike de Jong underscored Eby’s “careful point that the change is not a constitutional instrument that can be used to strike down laws that are presently on the books and would appear, on their face, to be inconsistent with the UN declaration.”

Rather, “in those cases, the onus will be there for the government” to bring in amendments to the offending legislation or rewrite the relevant cabinet order, said de Jong.

The Liberals, having joined the Greens and New Democrats in supporting the original UNDRIP legislation back in 2019, voiced no opposition to Bill 29 this time around.

On Monday, the bill breezed through second reading or approval in principle with no one voting against.

Next day, de Jong and Eby revisited the implications of the bill during clause-by-clause debate.

It is an important stage, especially when government is venturing into uncharted territory as it is with the UN Declaration.

Courts have been known to cite statements in the legislature by government ministers as evidence of the intentions of legislation.

De Jong pressed Eby for examples of how the change could be applied in specific cases.

“The general principle is that the Interpretation Act applies to every enactment unless a contrary intention appears,” said Eby. “Our intention is that it will operate in such a way that a reasonable interpretation that’s consistent with the UN declaration should be preferred by a statutory decision-maker or a court over an interpretation that is not consistent with the declaration legislation.”

He gave the example of a statute that obliges a decision maker to consider the public interest without defining public interest further.

“The Interpretation Act would instruct the decision-maker to prefer the interpretation of public interest that is consistent with the principles of the declaration.”

De Jong: “Where a piece of legislation contains provisions that are very clear — this legislation doesn’t say to a statutory decision-maker that you must discount the clarity of that legislation, notwithstanding the fact that it is inconsistent with the declaration. That is a job for the legislative assembly to address. Is that an accurate statement?”

Eby: “That is correct.”

De Jong turned to the example of the disposition of public lands and resources, where the public interest is made paramount but not defined to any extent.

One of the UNDRIP principles says that “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.”

Another obliges government to “obtain their free and informed consent prior to the approval of any project affecting their lands or territories.”

“It strikes me that the decision maker must very much take that language into account,” said de Jong.

Could the attorney-general “indicate whether he agrees or disagrees?”

Eby had been answering de Jong to that point and there was no reason to think he would not do so again.

But at that moment (6 p.m., Tuesday) the clock ran out on the ruthless time allocation motion that the NDP had adopted earlier in the day to expedite passage of its top-heavy legislative agenda.

With that, Eby was silenced before he could put on the legislative record an answer to de Jong’s critically important question.

Instead the bill was rammed through without further discussion.

Yet another example of the NDP’s reckless disregard for the basics of the legislative process.