“Adding more regulatory complexity will drive investment away, kill projects, and make housing even less attainable for British Columbians.”
—Independent Contractors and Businesses Association of BC
A public comment period on proposed changes to B.C.’s heritage conservation legislation came to a close last week and submissions from the business community are unanimous: the radical changes will be a disaster for the province.
Business groups across multiple sectors warn of severe adverse consequences for public and private land development, investor certainty, the economy, and the democratic process if the Heritage Conservation Act changes are implemented.
“Instead of streamlining processes and improving certainty, we believe [the proposed changes] will add complexity, uncertainty, and cost at a time when the province’s economy is on the cusp of recession and when British Columbia cannot afford more delays or red tape,” wrote the Independent Contractors and Businesses Association of BC (ICBA), which represents the province’s open-shop construction industry.
“At a time when builders are fighting to keep people working and deliver badly needed housing, adding more regulatory complexity will drive investment away, kill projects, and make housing even less attainable for British Columbians.”
The purpose of the existing Heritage Conservation Act (HCA) is to conserve historical, cultural and archeological sites in B.C.
The changes proposed by what the BC NDP government calls the HCA “transformation project” will expand Indigenous decision-making and enforcement over protected sites, and broadening the definition of what constitutes a heritage site.
The recommendations include “formalizing a process for seeking First Nations’ consent on permitting decisions,” expanding the definition of heritage “to include a broader spectrum of First Nations values, including intangible heritage values,” enabling a “suite of decision-making agreement types” including “consent-based decision-making agreements for Crown land,” and an expanded scope for “operational agreements” that will apply to both Crown and private land.
“The introduction of statutory consent-based processes… [shifts] power from democratically elected governments to a shared model with limited transparency…”
Business Council of BC
The changes are ostensibly aimed at bringing the legislation in line with the UN Declaration on the Rights of Indigenous Peoples, and to “improve how the HCA is implemented in a way that benefits all people in B.C.”
Objectives also include making permitting faster and easier, allowing quicker rebuilds after natural disasters, and improving transparency and access to information.
However, submissions from the business community during public engagement this fall reveal a consistent skepticism about government claims that the changes will achieve faster and easier permitting. Business participants were also concerned the sweeping changes will exacerbate an already uncertain investment climate, erode the ability of decision-makers to act in the broader public interest, and negatively impact private property rights.
“The current government-to-government framework intended to advance reconciliation… is not working,” wrote the Business Council of B.C., whose members employ one third of the province’s workforce.
The BCBC said the proposed changes to decision-making processes have “blurred lines of authority and excluded both the public and industry from decisions with material consequences for them.”
The introduction of statutory consent-based processes “creates confusion about who holds ultimate authority to make decisions in the public interest by shifting power from democratically elected governments to a shared model with limited transparency and democratic oversight,” stated the Business Council.
ICBA calls survey ‘biased’ with ‘pre-determined outcomes’
B.C. business respondents were generally unhappy with the lack of engagement and transparency that has marked the entire process of developing the changes.
Unbeknownst to the public, municipalities and other stakeholders, the proposed changes were developed over two years of secret consultations between the B.C. government and First Nations representatives only. By the time the proposed changes were revealed to local government representatives in September, the heritage conservation “transformation” working group had already reached consensus on 53 of 57 areas for change, according to Vancouver Sun columnist Vaughn Palmer.
Worse yet, local government officials were asked to sign non-disclosure agreements to prevent them from revealing the scale of the proposals to the public, a fact that was falsely denied by one NDP cabinet minister.
The limited public engagement sessions the B.C. government finally conducted this fall were a direct response to criticisms from the former president of the Union of BC Municipalities, Trish Mandewo, who called on the province to consult with municipalities and the public before implementing any changes. Last week, the UBCM went further, asking government to pause legislation to allow adequate time for more fulsome engagement.
In B.C.’s business sector, the Independent Contractors and Businesses Association was perhaps the most vociferous in its criticisms of the HCA “consultation” process. “The recently launched online survey, ostensibly designed to gather public feedback, is heavily biased in its framing and specific questions. It appears designed to generate pre-determined outcomes rather than genuinely explore public understanding or unintended consequences.”
“The recently launched online survey, ostensibly designed to gather public feedback, is heavily biased in its framing and specific questions.”
Independent Contractors and Businesses Association
Indeed, the public opinion survey made no mention of consent-based agreements, operational agreements over private land, intangible heritage values or any other of the more contentious elements of the proposed changes.
Instead, it focused on whether the public supports fast, easier permitting, which would predictably generate favorable feedback.
Intangible heritage values ‘impossible to regulate’
When it comes to the notion of “intangible” heritage values, the ICBA wrote, “it is impossible to regulate what cannot be seen or touched. Attempting to apply permitting rules to “intangible heritage” – such as stories, songs, or traditions – is unworkable and is certain to be a recipe for endless debate, conflict, and litigation.”
The BC Real Estate Association likewise expressed “significant concerns,” including that Heritage Conservation Act amendments could “easily have the unintended consequence of causing extended permitting delays and cancelled property transactions.”
Like the ICBA, the real estate association singled out the idea of “intangible heritage” as particularly problematic: “if the financial obligations tied to “intangible heritage” are unknown until after permit applications or worse, only discovered once construction is underway, projects face significant risk of collapse, adding further strain to housing supply.”
“If the financial obligations tied to “intangible heritage” are unknown until after permit applications or worse… projects face significant risk of collapse.”
BC Real Estate Association
From a more general economic perspective, the Association for Mineral Exploration, representing over 6,000 members engaged in mineral exploration and development, explained that “[t]here is a perception from global investors that the B.C. government is not in charge of the land base and this change will play into that narrative, further eroding investor certainty.”
The AME said many companies are already choosing to invest outside B.C., as “any delays mean added costs for our members and can also lead to difficulty raising capital that is required to continue onward.” Moreover, “changes like these erode investment certainty and dampen investment commitments and decisions. We are already seeing many juniors choosing to focus outside of the B.C. jurisdiction for just this reason.”
Like the Business Council, decision-making processes were also flagged by the AME, with focus on the government’s proposed delegation of provincial decisions to Indigenous bodies with no mandate to act in the public interest.
“We are fundamentally opposed to the devolution of enforcement to anyone other than the government of British Columbia. Provincial oversight is enough, and we would encourage you to take this issue very seriously and remove delegation authority,” wrote AME. “The fact of the matter is that this is public Crown land, and the Crown needs to continue to assume that responsibility to ensure that the public interest is balanced and upheld.”
“We are fundamentally opposed to the devolution of enforcement to anyone other than the government of British Columbia.”
Association for Mineral Exploration
Additional concerns raised by the Business Council of BC include “the current lack of transparency and accountability,” which the council said is “fostering the emergence of a governance system that is unpredictable, lacks checks and balances, and is more, not less, complex.”
Like many others, the BCBC drew attention to serious adverse economic impacts of the proposed changes, including that they may “make it more difficult, or even impossible, to use large areas of public land, leading to project cancellations or restrictions on activities, even in areas with no known archaeological sites.”
Impacts on private property were also flagged by BCBC: “Landowners, municipalities, and communities may be unable to use, transfer, or develop land deemed culturally significant in ways that are neither visible nor verifiable.”
The Business Council added that the HCA amendments would “enable operational agreements that bind private parcels and impose decision-making criteria and heritage obligations without the consent of landowners.”
Government’s process ‘fundamentally off course, ’ says development institute
The Urban Development Institute, representing 850 corporate members and thousands of individuals involved in land development and planning, was blunt in their assessment that government’s HCA process “has gone fundamentally off course.” Despite the government’s claims of faster permitting, the UDI’s “deep concerns” include: “additional regulatory layers,” “longer, more complex permitting processes,” and “added costs and delays.”
Far from achieving the government’s stated objective of transparency, the UDI wrote that, “When changes are introduced without meaningful consultation or a clear understanding of their economic implications, investor confidence declines, capital retreats, and the supply of new housing suffers.”
Further, the cost, risk and time impacts of the proposed changes on housing projects “are likely to be substantial at a time when the sector is already under extreme pressure,” and the approach “jeopardizes housing delivery and investor confidence.”
Another submission, jointly from UDI and Greater Vancouver Board of Trade, indicated the groups’ disappointment with “the Ministry’s lack of consultation with stakeholders,” warning that the process “could lead to severe unintended consequences,” that “will substantially impact the B.C. economy, and the ability of builders to provide much needed new housing supply.”
In a direct challenge to the government’s claims, the institute and the board of trade wrote: “We also do not have confidence that the proposals will make ‘Permitting Faster and Easier,’ which has been a shared priority of the business community and the Province. In fact, we believe the most likely outcome is further delays, more risk, and higher costs.”
“We believe the most likely outcome is further delays, more risk, and higher costs.”
Urban Development Institute and Greater Vancouver Board of Trade
Existing challenges with the HCA “will not be resolved, and will likely be exacerbated, by the proposals to transform the HCA,” they predicted.
Given uncertainties stemming from the Cowichan Tribes court decision, the UDI and Greater Vancouver Board of Trade implored the government to take a different tack, stating, “this is not an opportune time to bring forward changes that further decrease the business community’s confidence. Banking institutions and bond analysts are asking questions, and there are discussions across the country about the risk of transacting land and doing business in B.C. “
“Implementing new requirements without a clear plan to build capacity… could unintentionally delay projects”
Canadian Homebuilder’s Association of BC
As with so many others, frustrations with the lack of adequate consultation and reckless pace set by government are clear in the Canadian Homebuilder’s Association of BC’s submission as well. The association writes, “we have significant concerns that some proposals could move forward too quickly and without the full consultation, capacity or clarity needed to make them work in practice.”
Contrary to the Province’s promises of faster and easier permitting, the CHABC writes that “Implementing new requirements without a clear plan to build capacity provincially, with First Nations partners, and within the archaeology sector could unintentionally delay projects and add costs at a time when housing affordability and attainability are already under pressure.”
‘Nothing to see here’ approach belies controversial changes
Despite the B.C. government’s attempts to gloss over the magnitude of the proposed HCA changes and their ‘nothing to see here’ public opinion survey, there is plenty to see and much to be alarmed about.
The B.C. government secretly negotiated with an elite group of Indigenous leaders to develop radical public policy changes. Yet, when non-Indigenous stakeholders were finally initially engaged, they were explicitly excluded from discussing the ‘Indigenous values and rights recognition’ components of the Heritage Conservation Act – the most controversial provisions of the proposed changes.
As well, before the public, municipalities, and other stakeholders knew a dramatic legislative shift was being contemplated, and before the government opened its work to public feedback, the HCA ‘working group’ had already reached “consensus” on almost all of the proposed policy changes.
But the government can’t hide from the clear and consistent criticisms from the business community. Not only will the proposed changes introduce dangerous uncertainty in governance, industry and the economy, they quite simply won’t work.
Under the B.C. government’s proposed changes to the Heritage Conservation Act, permitting will get slower and more difficult, not faster and easier. Investment will flee and housing development will stall. And the government will abdicate its responsibility to protect and uphold the public interest to a greater extent than it already has.