THE ADVOCATE 23
VOL. 80 PART 1 JANUARY 2022
ENSURING CONSISTENCY WITH THE
UNITED NATIONS DECLARATION ON
THE RIGHTS OF INDIGENOUS PEOPLES:
THE NEED FOR A JOINT AUDIT OF
EXISTING LAWS
By Gib van Ert and Laura Abrioux
F ive years have passed since Canada announced its unqualified
support for the United Nations Declaration on the Rights of Indige-
nous Peoples (the “Declaration”).1 Over two years have passed
since British Columbia enacted the Declaration on the Rights of
Indigenous Peoples Act (“DRIPA”).2 Section 3 of the DRIPA requires the B.C.
government to take, in consultation and cooperation with Indigenous peoples,
all measures necessary to ensure the laws of British Columbia are consistent
with the Declaration. At the time of writing, however, we still do not
know how the government proposes to live up to s. 3’s promise with respect
to existing B.C. laws.
This article proposes a way to do so. Achieving consistency between the
laws of British Columbia and the Declaration requires a thorough audit of
existing laws, jointly with Indigenous peoples. While the scale of this project,
and the degree of participation by Indigenous peoples, are unprecedented,
the basic method is not. The implementation of international
instruments in domestic law always requires a review of existing laws for
consistency with the new obligations—including, where needed, legislation
to remedy any gaps.
The process followed by British Columbia, together with the other
provinces and the federal government, in the lead-up to Canada’s ratification
of the United Nations Convention on the Rights of Persons with Disabilities (the
“Disabilities Convention”) in 2006 is a recent example of how this is done. We
describe that process here and propose that British Columbia adopt a similar
approach for the Declaration—with the crucial difference that this time
Indigenous peoples must be partners and not mere stakeholders.