The problem with Declaration Act isn't the courts. It's the Premier.
A Premier who triangulates instead of leads is running out of room on DRIPA
When House Leader Mike Farnworth announced Monday that the bill to suspend parts of the Declaration on the Rights of Indigenous Peoples Act would be tabled later and that it would not be a confidence matter when it does come back, the Premier’s office was at pains to call this a pause. It was something more serious than that. It was the second retreat in a month from a position the government had said was non-negotiable.
Three weeks ago, David Eby was prepared to amend the Declaration Act permanently. First Nations leaders said no. He pivoted to a three-year suspension and tied it to confidence, daring his caucus to bring down his government. Reportedly, by Saturday, more than ten of his MLAs had raised serious objections in an emergency caucus meeting. Joan Phillip, the Indigenous MLA for Vancouver-Strathcona, was among them. Stewart Phillip of the Union of BC Indian Chiefs, married to the MLA, called it a leadership issue and warned that it could take the party decades to recover.
A government in its third consecutive mandate does not backtrack twice in three weeks on the same file unless something has gone badly wrong. What has gone wrong is not tactical. It is the absence of a clear sense of where this government wants to take the Crown-First Nations relationship in British Columbia.
You could see it in how each step unfolded. The Court of Appeal handed down the Gitxaała ruling in December 2025. The Premier read it as a problem to manage rather than as a clarification of what the law he helped pass in 2019 had always meant. He proposed unilateral amendments. When that failed, he proposed suspension. When that failed, he pulled the bill. The posture at every stage was defensive: reduce legal liability, limit judicial intrusion, and buy time for an appeal. Not once in three weeks did anyone in government say what the relationship between the province and First Nations is supposed to look like in twenty years, or what the government is doing now to build toward it.
That is the problem. A government without a destination spends its time defending its current position from whoever is challenging it that week. A government with one has a filter for its decisions. The Eby government does not have a filter, which is why each move has surprised his caucus and its own partners.
The vision is easy to articulate, making the absence of one harder to explain. A real vision describes what is true but is not true today. It is exciting, not just remedial. It is bigger than any one initiative. It pulls people toward something rather than away from a problem.
In twenty years, First Nations and the Crown govern this province together. British Columbia is a place where First Nations and the Crown make decisions about the land, resources, and Indigenous matters together, as governments that recognize each other. No decision about the land, the water, or the resources of this province gets made without the nations whose territory it is at the table as equals.
The institutional architecture for resolving disputes about implementation operates independently of any particular cabinet, receives predictable funding, and earns the trust of both sides. None of that requires anything beyond what is already implicit in the Declaration Act. What it requires is the operational machinery to deliver on what the Act already promises.
That machinery was never built. Section 3 of the Act commits the Crown to align all provincial laws with the UN Declaration. The Act does not specify the leading agency, timeline, budget, or consequences for failing to achieve alignment. The 2022 Action Plan was supposed to fill the gap. Instead, it produced 89 actions scattered across every ministry, dozens of joint tables, no central authority, and no enforcement. I sat through the passage of the Act in 2019. The First Nations leaders in the chamber understood what we were committing to. It was unclear whether all the MLAs and cabinet ministers who stood up to celebrate the achievement understood it the same way. The Court of Appeal in December named that gap. The Premier’s response since has been to try to close it by lowering the law rather than raising the practice.
The serious answer is to amend the Declaration Act, but in the opposite direction from what Eby has been proposing. Add the institutional architecture that should have been there in 2019. That answer also addresses the three concerns the Premier has raised, which we should take seriously even when the proposed remedy is wrong.
The first is judicial overreach. Eby says the Court of Appeal has taken control in a way the Legislature did not intend. The answer is a specialized forum. An Indigenous Rights Tribunal, modelled on the Canadian Human Rights Tribunal, with parity appointments by the Province and by a First Nations appointment board, would hear complaints that a provincial law or decision is inconsistent with the UN Declaration. It would have power to declare inconsistencies, quash administrative decisions, order interim measures, and retain jurisdiction over compliance. Its orders would be registrable with the BC Supreme Court and enforceable as orders of that court. The generalist courts would step back because there would be a better venue. Indigenous expertise would be built into the bench. The Premier receives the relief he says he wants on stronger legal ground than suspension would ever provide.
The second is the litigation wave. More than twenty existing cases have been amended to take advantage of Gitxaała, with two decisions already relying on the precedent. The answer is to give the Crown a credible alignment pathway that the courts will recognize. A Declaration Act Implementation Office with central agency authority, reporting to the Premier rather than being buried in a line ministry, could publish a statutory alignment work schedule covering every relevant provincial statute. Each statute would have a co-drafting partnership with affected nations, statutory deadlines, and public reporting. Cabinet submissions from any ministry that had not done its alignment homework would be held up. Once the work is visibly underway on a defined schedule, the litigation pressure drops because the province is doing what the Court said section 3 requires. The current wave of lawsuits is a response to inaction. The cure is action.
The third is certainty for industry. Trevor Halford, the interim Conservative leader, was right this past week when he said suspension would bring less certainty than the status quo. Industry does not need a weaker Declaration Act. It needs to know how disputes are resolved and on what timeline. A tribunal with defined jurisdiction and statutory deadlines provides exactly that and does so more reliably than the current arrangement of nation-by-nation litigation through the regular courts.
That is what a constructive amendment package would look like. Establish the Implementation Office. Establish the tribunal. Create a Joint Implementation Council with parity composition and formal sign-off authority on the alignment schedule, the annual report, and any future amendment to the Act. Tie funding to a statutory formula so it stops being relitigated every budget cycle. That is the version of the Declaration Act the Legislature should have passed six years ago. The current crisis makes it politically possible.
What the past three weeks have demonstrated is that this Premier prefers to triangulate rather than lead. Each retreat has produced a smaller climbdown than the last. There comes a point at which a leader has to stop trying to manage every faction and decide what he actually believes the province should become, then build the coalition for it. Eby has not done that on this file. His caucus has noticed. So have First Nations. So has Stewart Phillip, who does not normally talk about leadership crises lightly.
The bill that comes back later this session will be different from the one that was pulled this week. The question is whether it will reflect a destination this government is finally willing to name or whether it will be one more piece of damage control dressed up as principle. The province is watching to see whether the Premier has a vision worth defending or only a position worth retreating from.