By Bruce Murdoch

Op-Ed Commentary

Recent headlines warn that American Indigenous tribes are using B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) to “expand influence” in our province and threaten our sovereignty. As East Kootenay residents watching the Record Ridge magnesium mine court fight and other projects closely, we deserve a more accurate and less inflammatory discussion.

Yes, the legal landscape has changed. DRIPA, passed in 2019, commits B.C. to align its laws with the UN Declaration on the Rights of Indigenous Peoples and creates new tools for shared decision-making with Indigenous governments. And yes, U.S.-based Indigenous nations like the Sinixt Confederacy and Alaska tribal organizations are now more active in B.C. courtrooms, including over mines affecting watersheds that cross the border.

But calling this a “sovereignty crisis” misses the point – and risks pitting neighbours against each other.

Take the Sinixt. For decades, Canada treated them as “extinct” north of the border, even while community members continued to live, hunt, and steward lands across what is now southeastern B.C. and Washington State. In 2021, the Supreme Court of Canada ruled in the Desautel case that the Sinixt are in fact an “Aboriginal people of Canada,” entitled to constitutional protection of their rights in their traditional territory here.

That decision, not DRIPA alone, explains why courts recently confirmed the Sinixt’s right to participate in proceedings about the Record Ridge mine near Rossland.

Similarly, Alaska tribes concerned about the Eskay Creek mine are downstream from a major B.C. project whose impacts literally flow into their homelands.

Modern environmental law expects us to hear from those affected across borders, Indigenous or not. That is common sense watershed management, not a surrender of provincial jurisdiction.

Importantly, allowing Indigenous nations that straddle the border into the conversation does not hand them control of B.C.’s Crown resources. The B.C. Legislature still makes the laws. The provincial cabinet still issues or denies permits. DRIPA shapes how those decisions are made, especially the duty to consult and how Indigenous consent is built into agreements, but it does not transfer sovereignty to Washington State or Juneau.

What is really happening is more nuanced, and frankly more uncomfortable for all governments. Courts, regulators, First Nations, and companies are working through how to reconcile three things at once: section 35 rights in the Constitution, UNDRIP’s commitment to free, prior and informed consent, and the fact that many Indigenous nations are divided by a border they never agreed to. That’s messy, but it’s not a coup.

None of this means local communities or B.C. First Nations should accept endless uncertainty. The Osoyoos Indian Band, co-developer of the Record Ridge project, has openly criticized outcomes that delay their economic plans. Miners, municipalities and Indigenous partners need clear, workable rules.

But the answer is not to repeal DRIPA or slam the door on cross-border Indigenous voices. Instead, the province should:

• Clarify when and how cross-border nations are consulted, especially for projects near the U.S. border or shared watersheds.
• Resource Indigenous and local governments so they can participate effectively and on tight project timelines.
• Refine DRIPA implementation, in open dialogue with First Nations and the public, rather than making changes in secret or by crisis-driven press release.

In the East Kootenay, we know that rivers don’t stop at customs and that history long predates the 49th parallel. Recognizing that reality through DRIPA and the courts is not a threat to B.C.’s sovereignty.

It is an overdue step toward honest relationships – one that requires thoughtful policy work, not fear-mongering.

Bruce Murdoch is a Cranbrook–based policy analyst focused on energy, housing and municipal governance in the East Kootenay.

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