FINDING COMMON GROUND: EXAMINING INTERSECTIONS IN PRIVACY LAW FOR ALIGNMENT BETWEEN BRITISH COLUMBIA AND INDIGENOUS CONTEXTS

Abstract

Alignment between the laws of British Columbia and Indigenous legal orders is an ongoing process, with pressing need created by the United Nations Declaration on the Rights of Indigenous Peoples and the decision in Gitxaała v British Columbia  (Chief Gold Commissioner), 2025 BCCA 430. Privacy law is no exception to this pressing need. The intersection between the two legal spaces necessitates the question: how can privacy law in British Columbia better align with Indigenous contexts in a manner that respects and affirms First Nations' legal traditions and rights? More specifically, how can divergent legal spaces enable privacy law implementation? An intersectional, anti-positivist framework can be adopted by braiding together decolonial calls to action with critical legal studies, feminist and queer legal approaches.

Using this framework, this thesis is explored in two stages: first, jurisdiction is investigated through Gitxsan, Salish, and Canadian legal perspectives; and second, reconciliation and resurgence are explored as distinct ways of aligning privacy law. Reconciliation efforts are examined through a critical reflection on privacy and democracy, and the limitations in reconciling divergent approaches, while Indigenous resurgence efforts are reviewed through anticolonial mindsets, common resurgence principles, and potential factors motivating resurgence.

A working compromise to better align privacy laws must address underlying perspectives and power dynamics. This compromise would include first, a recognition that Canadian perspectives need to adapt to Indigenous legal orders while Indigenous Peoples continue to pursue their own law-making; second, that British Columbia must revise the Personal Information Protection Act  to better comply with OCAP principles, cede authority on certain privacy law grounds to affected Indigenous communities, and establish an intergovernmental authority to address privacy law gaps for Indigenous Peoples; and third, First Nations communities must be able to implement their own privacy laws whether through customary law, storytelling, textual by-law, or direct action. Regardless of specifics, British Columbia must approach this issue holistically by acting meaningfully upon its commitments.