Human Rights Commissioner for BC intervenes in mineral tenure case

Carving of a face by Miles Edgars. Cover image for First Nations Energy and Mining Council report, Indigenous Sovereignty: Consent for Mining on Indigenous Lands.

The Human Rights Commissioner intervened in the Gitxaala Nation and Ehattesaht First Nation's cases challenging the Province's registration of mineral claims on their territories with no prior consultation. As an intervenor, her role was to assist the court and is independent from the parties. Here were the oral submissions of counsel for the Commissioner.

1.    Justice, I begin by introducing myself by my Haida name, to correct my breach of Haida law made on Monday during introductions: gid7ahl-Gudsllaay, Gaadal dyaas. With me is Heather Hoiness, for the Human Rights Commissioner of British Columbia. 

I. Overview (paras 1-3)

2.    The Human Rights Commissioner’s statutory mandate is to protect human rights in B.C. Specifically, to tackle systemic human rights issues (including compliance with international human rights norms). 

PR, Tab 68, Affidavit of Kasari Govender at paras. 23-29

3.    We are here because UNDRIP is an international human rights law. And, we say, DRIPA is a human rights statute. 

4.    We refer and rely on our written submissions in their entirety, found at Tab 57, of the Petition Record. I will augment those submissions and will let you know the relevant paragraphs where applicable. 

5.    To begin, I reflect on how the Human Rights Commissioner’s role is reflected in Indigenous art. 

6.    I hand up the cover page to a Report exhibited in the Roscoe Affidavit that Mr. Smith for Gitxaala referred you to last week. 

Tab 47 of the Petitioners Record, Exhibit K

7.    The argillite carving on the cover is a Haida Watchman. In the report, the authors explain: “We felt the Watchman conveyed the essence of this project—the Watchman guards and watches over our lands, our People and all our Relations today and for future generations.” 

8.    In that report, and this litigation, Indigenous Peoples are the Watchmen over the lands and waters vis-à-vis mineral tenuring without Indigenous consultation. 

9.    This image also reflects the Human Rights Commissioner’s role: she watches over human rights in BC. The Watchman sits at the top of Haida totem poles for far-reaching vision, such vision is required to protect human rights. I’ll return to this analogy in my concluding remarks.

II.    DRIPA is quasi-constitutional human rights legislation (¶s 6-17)

10.    Our oral submissions focus on the proper characterization of DRIPA and UNDRIP’s status in BC’s domestic law. 

11.    Jumping to paragraphs 7 and 8 (page 2 of our written submissions), the Supreme Court of Canada has long recognized that certain legislation is quasi-constitutional. Such legislation performs a more fundamental role in our society than ordinary statutes. It seeks to “buttress and protect” values that are more important than those reflected in other statutes (Heerspink Tab 96 page 157). Values such as, we say, reconciling Indigenous Peoples’ inherent human rights with the assertion of Crown sovereignty. 

12.    Justice Sopinka explained why human rights legislation is privileged as “pre-eminent”, “quasi-constitutional” and of “a special nature, more than ordinary”. Quoting from him at paragraph 9:

“One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and the disenfranchised. As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed.” 

Tab 238 of JBOA; Zurich Insurance v Ontario (Human Rights Commission), [1992] 2 S.C.R. 321

13.    The vulnerability of Indigenous peoples is at the heart of this litigation. 

14.    As for the relevant “box of law”, at paragraphs 10 and 11 we explain there is no prescribed test to determine whether legislation is quasi-constitutional. Courts look to the purpose of the legislation, and whether it seeks to fulfill fundamental societal objectives, like reconciliation. However,  one consideration is a statute’s relationship to the constitution. We say DRIPA’s connection to the constitution is plain and obvious on its face. 

15.    At paragraph 12, another consideration is DRIPA’s relationship to UNDRIP. UNDRIP is an international human rights instrument. UNDRIP is not only referred to and affirmed in DRIPA, but is attached in its entirety as a schedule.

(The Province agrees at para. 191 of its written submissions)

16.    At para. 13, we address the Legislature’s intention, another consideration.

17.    “Human rights” as the subject of DRIPA were referred to dozens of times in Hansard from the time it was introduced until it received Royal Assent. (para. 13).

18.    The Honourable Scott Fraser—who spoke for the government during all three readings—said (at page 4 of our submissions) “Through this legislation, we are recognizing the human rights of Indigenous peoples in law” further, that DRIPA was “about ending discrimination, upholding human rights”. He characterized DRIPA as “no ordinary bill”. (para 14)

19.    A legislator’s opinion on the legal effect of DRIPA is relevant, but not determinative. The interpretation of DRIPA is a question of law; it is for this court to seek out the purpose of the Act and its provisions, and give them effect. We say the Court should do that using the established principles of statutory interpretation applicable to human rights legislation. 

20.    These principles are summarized by Sullivan on the Construction of Statues, cited at footnote 12 (paragraph 17, p. 5) of our argument. I won’t take you there, but you can find this at Tab 369 of the JBOA. I summarize section 19.01(8):

… the modern principle applies to all legislation, regardless of subject, [but] in fact the subject dealt with     matters ... Human rights legislation attracts a dynamic and liberal construction and prevails over other legislation in cases of conflict, even though ensuring the human rights of some persons often entails a loss of rights (such as freedom of contract or control of access to property) for others. The courts can take this approach … in part because human rights [legislation] express the most important and highly valued norms of our society… [She ends by saying courts can take a broad approach] with particular confidence. 

21.    The ceremony introducing DRIPA is captured in Hansard (JBOA, Tab 355, pages 10223-10230). The ceremony was not held on Royal Assent (to correct an error at paragraph 15). Indigenous leaders, elders, singers, and dancers participated in the ceremony alongside MLAs. 

22.    DRIPA was drafted in what Minister Fraser described as an unprecedented process: co-development with Indigenous Peoples (see the JBOA, Tab 355, p. 10222). Accordingly, we say Indigenous leaders’ statements during the ceremony are relevant to legislative intent. We include an excerpt at paragraph 15 heralding DRIPA as “transformative change”, and a shift to “a human rights foundation and approach to reconciliation”. (Tab 355, pages 10227)

23.    It’s important to clarify the importance of the DRIPA ceremony: it was an example of intersocietal law. People who were not raised with such ceremonies, or trained in Indigenous law, may think they are only artistic or celebratory expression. In truth, ceremonies are examples of Indigenous Peoples’ performance-based legal traditions. The extraordinary proceedings sang into existence human rights legislation for Indigenous Peoples. 

24.    On the basis I’ve just outlined, the Commissioner says DRIPA is quasi-constitutional law. The legislative intent—affirmed by Indigenous Peoples in ceremony—was to pass human rights legislation specific to Indigenous Peoples’. (para. 16)

25.    We conclude this part of our argument and submit that if you accept DRIPA is human rights legislation, you should construe it keeping in mind Professor Sullivan’s comments about dynamic and liberal construction regardless of whose submissions you are considering because, the subject of a law matters.

III.    Justiciable Standard

26.    Moving to section B of our argument, page 5. The Commissioner says that DRIPA implements UNDRIP into BC’s domestic law, at paras. 18-33 of our argument. 

27.    We won’t go through this section, but note at paragraph 19 that DRIPA’s drafting has left some analytical heavy lifting to the courts. We submit that you should resolve any ambiguities by accepting the interpretation that best accords with DRIPA’s purpose (reconciliation and upholding the human rights of Indigenous Peoples) and Canada’s international obligations under UNDRIP. You should construe DRIPA as broadly as its words can bear.

28.    I will briefly reply to the Province’s written submissions about implementation. (PR, tab 53, at paras. 189-200)

29.    We agree with the Province: implementing international law “must be manifested in the implementing legislation and not be left to inference”. (PR, Tab 53, para. 219).

30.    We say DRIPA, read with the Interpretation Act,  makes manifest UNDRIP’s implementation. We do not ask you to draw an inference. 

31.    The Province says that implementation … requires stronger statutory language than DRIPA. (PR Tab 53 at para. 198) and relies on five cases for that proposition. Those cases simply confirm that you must apply the principles of statutory interpretation to determine whether an international instrument has been implemented. For example, Li v. British Columbia, 2021 BCCA 256 at paras. 110 and 115 (Tab 109) and Pfizer Inc. v. R., 1999 CanLii 8219 at para. 43 (Tab 139).

32.    We agree and say the principles to be applied to DRIPA are those applicable to quasi-constitutional human rights legislation. 

33.    Beyond that, the Sin and Quebec cases the Province relies on are of limited use as they do not consider implementation. (Sin v. Canada, 2016 FCA 16 and Quebec v. Canada, 228 DLR (4th) 527)

34.    The remaining cases—Pfizer, Council of Canadians, and Li—are distinguishable.

35.    First, the statutory language is different: none address the meaning of “affirm”, for example, and none grapple with an interpretation act provision like section 8.1(3).

36.    Second, the structure of the statutes are different: for example, the NAFTA Implementation Act at issue in both Li and Council of Canadians does not attach NAFTA itself to the Act, in whole or in part.

37.    Finally, the rights at issue are different: only Quebec v Canada involves human rights but it addresses the effect of Canada ratifying an international instrument, not legislation that arguably implements it. 
(Pfizer involves trademark protection; Council of Canadians involves whether NAFTA’s arbitration clause limits the superior courts’ jurisdiction, and Li involves BC’s foreign home-buyers tax). 

38.    At paragraph 22 we submit that it is evident that some of BC’s laws are inconsistent with UNDRIP; otherwise, the Legislature would have not articulated a need to take “all necessary measures” to ensure consistency. 

39.    The measures the Province envisions are generational. The Province appears to say implementation must occur without judicial oversight. BC made a similar argument in the Haida Nation case, in which I was lead counsel. The Supreme Court of Canada found the duty to consult was justiciable, and necessary, to bring about recognition of aboriginal interests that might be impacted prior to proof of those rights, or a negotiated agreement. (Tab 8, Haida Nation, paras 75-76). 

40.    The Haida case was a catalyst for courts to further interpret the duty and it has resulted in legislative amendments and negotiated agreements, clearly demonstrating that the role of the Court and government are complimentary, not separate silos.

41.    We will jump ahead to paragraph 36, page 10, of our argument.

IV.    Human rights legislation prevails

42.    As you heard from the Sullivan excerpt, human rights statutes prevail when there is an irreconcilable conflict with another enactment. In paragraphs 36 to 39 we set out our argument, and say DRIPA must govern in event of a conflict. 

43.    In relation to section E of our argument (paragraphs 44-53), you have heard from Mr. Underhill and the Petitioners about the import of Indigenous legal orders to this case. We agree. 

44.    I will move to our concluding remarks.  

V.    Conclusion (p. 15)

45.    In conclusion, DRIPA is a quasi-constitutional law. To find UNDRIP is only an interpretive aid or to find DRIPA non-justiciable, would fail to give DRIPA the required broad reading. 

46.    The Commissioner acknowledges the courage of the Gitxaala and Ehattesaht to share their sacred knowledge in a colonial court. 

47.    The Gitxaala have shared their Ayookxw, their treasured knowledge about naxnanox, the Supernatural Realm. The Ehattesaht have shared their sacred knowledge about their Ha-Houlthee, and the interconnected land, sea, people, and beings of these realms. 

48.    All Indigenous Peoples in this Province share a history of colonization that has subjected us to many well-known injustices—all based in the discriminatory belief that we were not people. 

49.    Indigenous scholar, Brenda Gunn, described UNDRIP’s significance well when she said: “This is a declaration which makes the opening phrase of the UN Charter, “We the Peoples…” meaningful for the more than 370 million indigenous persons all over the world.” (para. 45). 
Brenda L. Gunn, “Overcoming Obstacles to Implementing the UN Declaration on the Rights of Indigenous Peoples in Canada” (2013) 31 Windsor YB Access Just 147, Tab 335 JBOA.

50.    Despite the horrible history of colonization, the Gitxaala, Ehattesaht, and all Indigenous Nations in BC have endured. As have our legal orders.

51.    That resilience is akin to argillite—the carbonaceous shale that was carved into the form of the Watchman we began with. 

52.    With resilience comes hope. The abalone shell inlaid in the eyes of the Watchman represent hopeful foresight; reflecting the desire to foster a culture in BC rooted in human dignity, where the rights affirmed in DRIPA are realized and enforceable. Including in the mineral tenuring system.

53.    The Commissioner thanks the Gitxaala and Ehattesaht Nations for bringing us together in the courtroom to start the fire of transformative change. That fire is now in the hands of this Court to tend.

54.    Subject to any questions, these are the submissions of the Human Rights Commissioner for British Columbia. 

Top photo: First Nations Energy and Mining Council, Indigenous Sovereignty: Consent for Mining on Indigenous Lands (cover image) carved by Miles Edgars.

Gid7ahl Gudsllaay, K.C. and Heather Hoiness, Legal Counsel for the BC Human Rights Commissioner of British Columbia