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B.C. resets talks on plan to give First Nations more say over public land

February 15, 2024
Nathan Cullen speaks after being appointed Minister of Municipal Affairs following a swearing-in ceremony at Government House, in Victoria Feb. 25, 2022. Cullen, Minister of Water, Land and Resource Stewardship, is now leading a ‘reset’ of the consultation process that began in January. CHAD HIPOLITO/THE CANADIAN PRESS

The Globe and Mail: The British Columbia government is conducting an intensive series of meetings with industry and outdoor recreation groups this month, in an attempt to assuage concerns about its proposed changes to the law that governs Crown land.

The province plans to amend the Land Act in the spring legislative session to pave the way for joint decision-making with Indigenous communities about public land, bringing it into line with the intent of B.C.’s 2019 Declaration on the Rights of Indigenous Peoples Act (DRIPA). But the little-advertised process with its hasty timeline alarmed stakeholders who rely on Crown tenures, stirring up uncertainty about future access.

Nathan Cullen, Minister of Water, Land and Resource Stewardship, is now leading a “reset” of the consultation process that began in January.

Kevin Boon, general manager of the BC Cattlemen’s Association, was invited to the initial consultation process in January, during which government bureaucrats laid out the proposed changes in a one-hour meeting. The cattle industry relies on Crown tenures for seasonal grazing rights and access to water, and the prospect of a new system of approvals has generated fears across the industry.

Last week, his organization had a second session, this time with Mr. Cullen, where the minister offered assurances that the amendments are only intended to deal with major new projects. Mr. Boon said he wants those verbal commitments in writing.

“Intentions are always based on good thoughts, but in law, we often see where the unintended comes up down the road,” he said. “Why do we have to have it done by spring session? Let’s take our time. This is very, very important and could have long-term, serious effects on everybody in this province.”

One of Mr. Cullen’s meetings last week drew 90 corporate leaders for a two-hour session, with a follow-up promised later this month. “There was a lot of discussion,” said Laura Jones, president of the Business Council of B.C., “but I wouldn’t say that all of their questions have been answered.”

The Land Act governs access and use of public land, which accounts for 94 per cent of the province, and there are roughly 40,000 active tenures, permits and licences for activities and infrastructure on it, such as forestry and transmission towers. The proposed amendments will create a legal mechanism to allow B.C. and First Nations to establish joint statutory authority over new projects on public land.

The draft legislation is not written yet, so there are few specifics. In a series of meetings this month with stakeholders, Mr. Cullen is emphasizing mostly what the proposed amendments are not meant to do. The changes will not grant First Nations veto power over public land, he says. Nor will they lead to broad, sweeping or automatic changes. And he maintains there will be no changes to the public’s ability to access Crown land, to existing tenures or existing decision-making processes.

“This is a fairly minor and modest step, but a very important one,” said Doug White, Premier David Eby’s special counsel on Indigenous reconciliation. “The Land Act amendments that are being contemplated by themselves do not do anything or change anything other than create the opportunity for future agreements, on a case-by-case basis, between the Crown and First Nations to craft decision-making agreements over a certain topic area.”

He noted that the proposed changes stem from both case law and political commitments.

Twenty years ago, the Supreme Court of Canada’s Haida decision established that the Crown has a duty to consult and accommodate Indigenous peoples whose rights are affected on decisions regarding public land and resources. That judgment has broad reach in B.C., where most of the land base is still subject to Indigenous land claims. But successive governments have yet to establish a framework that would provide certainty over land and resource development.

The political commitment is contained in DRIPA, unanimously passed by the B.C. Legislature four years ago, which provides greater influence to First Nations over law-making. It spells out that resource developments require the “free, prior and informed consent” of affected Indigenous peoples.

Mr. White sees the public consultation as an opportunity to educate the public about the purpose of DRIPA, and he does not expect that process to delay the passage of the amendments before the session ends in mid-May. “It has got a lot of attention, and I think that’s great,” he said in an interview. “We can’t do reconciliation properly if we aren’t all engaged in the work.”

The government has received more than 500 submissions or comments on the proposed changes. Some of that feedback includes concerns that the province is giving First Nations governance over non-First Nations parties, reducing accountability to the public.

In response to stakeholder concerns, the province has rewritten its engagement documents to emphasize that the public interest will be a critical part of any government decision to enter into a negotiation with a First Nations governing body that could lead to an agreement to share decision-making on a specific issue. And any decisions reached through that process will be judicially reviewable – complainants can challenge decisions in the courts.

Thomas Isaac, an expert in Aboriginal law at the Vancouver law firm Cassels, wrote in a Feb. 13 analysis that it is difficult to gauge the scope of the changes before the amendments are tabled, but the impact could be broad. “The magnitude of this potential change to British Columbia’s governance and regulatory regime over Crown land is unprecedented and could result in an untenable and unworkable Crown land governance and regulatory regime.”