Proposed legislative changes will give Indigenous nations new legal power on land use

Written By Rob Shaw

“There’s no debate that this process creates a veto power, there’s no dispute about that.”

––Robin Junger

B.C.’s minister responsible for Crown land is apologizing for the confusing reveal of new Indigenous co-governance legislation that critics say could dramatically reshape decision-making on public land across the province.

Land, Water and Resource Stewardship Minister Nathan Cullen said the government has nothing to hide with the pending legislation, even though it only leaked out after law firm McMillan highlighted a low-profile public engagement page on an obscure subsection of the government’s website.

“If from the start we’d been more proactive I think some of the worries would have been a bit less,” said Cullen. 

“I take total responsibility for want of a press release and press conference.”

The public consultation has been called rushed, given a projected completion in March and introduction of the legislative changes this spring, just months before the October provincial election.

Amendments to B.C.’s Land Act may sound dry and boring. But the law governs how the public can access public Crown land that makes up 95 per cent of the province. That includes tenures for things like ski hills, hunting, fishing, parks, eco-tourism, ranching, forestry, mining, gas extraction, water docks, and more.

Shared land use decision-making will have ‘force of law’

The government’s proposal is to change the act to “share Land Act decision-making” with Indigenous governments by allowing cabinet to enter into agreements with nations that “have force of law.”

“I realize that there’s a certain element of worry and fear within some groups — is it broad sweeping, does it affect every square inch of the province tomorrow? Once we get into the explanation, particularly on the resource side… there’s significantly more comfort,” said Cullen.

“We won’t start drafting legislation until we’re done public consultation. And I’m committed to taking the time to get this right because it’s important.”

“I’m committed to taking the time to get this right.”

Nathan Cullen

According to the B.C. government’s engagement page, the province hopes to begin shared decision-making with Indigenous governments on public land use by late spring. Unlike other public consultations involving major policy shifts, government does not intend to make the land use submissions public.

Agreements will give First Nations legal power over non-Indigenous people

It’s an enormous change, because they could allow Indigenous governments to become co-statutory decision-makers on public land use, effectively allowing, for the first time, Indigenous leaders to make decisions about non-Indigenous people, said Robin Junger, an Indigenous law expert at McMillan and a former B.C. government deputy minister.

“The minister keeps saying things like this is just an enabling power, there will be more consultation, but once they bring in these amendments the legal power will attach to First Nations over non-Indigenous people any time government signs an agreement with them,” said Junger.

“The legal power will attach to First Nations over non-Indigenous people any time government signs an agreement with them.”

Robin Junger

That, in turn, raises a whole host of questions, such as how Indigenous governments define “public interest” under the law in making their decision about non-Indigenous applicants, said Junger.

“If this change is made any place where there’s an agreement, the First Nations will either have the right to consent or joint decision making, and a tenure can’t be issued without their support,” he said.

“There’s no debate that this process creates a veto power, there’s no dispute about that.”

Premier argues the change meets a ‘moral obligation’

The “veto” word brings with it all sorts of connotations, and fears. 

The government steadfastly argues there is no such power in its proposed changes, and that it is simply attempting to recognize the impact of the Declaration of Rights of Indigenous Peoples law from 2019, as well as the numerous Indigenous court victories on rights, title, consultation, and free and informed consent.

“This Land Act amendment essentially brings into force the ability legally for government to do what we’ve been doing.”

David Eby

“I can understand the anxiety that people would have if they have some kind of an operation, whether economic or personal, on Crown land,” said Premier David Eby, when asked about the criticism this week.

Premier David Eby tours the Okanagan last summer with residents impacted by wildfires. [Photo BC Government]

“We have a legal obligation when we’re in the core territories of First Nations to involve nations directly. We also feel that there’s a moral obligation for us to do this as well. But if nothing else, the courts have told us that government has to do this.

“So this Land Act amendment essentially brings into force the ability legally for government to do what we’ve been doing, frankly, up to this point.”

Shared decision-making happening in different forms, says Indigenous leader

The lack of details from government may be contributing to fear and misunderstanding, but there’s many examples of shared decision-making agreements between the province and Indigenous communities on specific projects, as well as precedent from DRIPA and court rulings, said Khelsilem, chairperson of the Squamish Nation.

He said his community has seen both models while participating in the environmental approval for the Woodfibre LNG facility in its territory. First, it had to retain its own lawyer and use contract law to get enforceable conditions because the nation wasn’t able to create a statutory process with the government.

“In that case we did our own environmental assessment, the province did theirs, we came up with our conditions, and our conditions were backed by the Crown to the company,” he said. “Which is, in effect, the shared decision-making model.”

Later, Squamish Nation was able to enter into a harmonized environmental assessment process with government to assess Woodfibre LNG’s temporary floating worker hotel. That led to a joint review with joint conditions for approval.

“There’s been a long history of using courts as a stick to shove government or industry into some direction and there’s some recognition that’s a very lengthy, unproductive, adversarial way to resolve these issues,” said Khelsilem.

Changes will restrict public access: critic

Still, the major worry with the changes is public access to public land, said BC United critic Lorne Doerkson.

“The fear is access,” said Doerkson.

“We’ve seen that before, with Joffre Lakes (provincial park) last year where access was denied to that park for a number of weeks. And frankly, the government was very slow to respond to that and react.

“The fear is [losing] access.”

Lorne Doerkson

“We typically suggest when we talk about tenures we’re talking about industry. But frankly we all use tenures. The second you put your kayak in your car and come… anywhere to recreate, you are crossing Crown land, and we don’t want that to be in jeopardy in any way.”

Joffre Lakes Park, north of Whistler, was closed for several weeks last summer after two First Nations shut the area down the area to assert their right to harvest local resources off the land. The controversial move garnered criticism from some quarters and meant hundreds of visitors were abruptly denied access to what was a popular provincial park.

Amendments will ‘profoundly affect’ ability to steward, BC Wildlife Federation

“The amendments under consideration will profoundly affect the ability of British Columbians to steward, access, and enjoy nearly every inch of the province for recreation and business, while delivering effective veto power, disregarding the concepts of natural justice and procedural fairness,” the B.C. Wildlife Federation said in a statement, calling the public consultation “a sham.”

“The B.C. Wildlife Federation will push back against the province with all of our resources.”

BC Wildlife Federation

“Promoting conservation and ensuring public access for camping, hiking, hunting, and fishing are essential to our collective future. 

“The B.C. Wildlife Federation will push back against the province with all of our resources to ensure all British Columbians are represented.”

‘Conservatives will defend your rights’

BC Conservative leader John Rustad said the province should back away entirely from the changes.

“It is an assault on your private property rights and our shared rights to use Crown land,” he said.

“Conservatives will defend your rights to outdoor recreation — and your water access, as well as BC’s mining, forestry, agriculture sectors and every other land use right British Columbians currently enjoy.”

“It is an assault on your private property rights and our shared rights to use Crown land.”

John Rustad

Rustad said he’d even repeal UNDRIP, the United Nations Declaration on the Rights of Indigenous Peoples, which formed the basis for B.C.’s DRIPA law in 2019 and is an undercurrent to the Land Act changes.

Cullen said he’d still like to get the legislation in by the spring session of the legislature. But that’s remarkably fast, by government standards.

He said it’s also on the government to fix its communication problems, so that any fear is not taken out on local Indigenous nations.

He also didn’t rule out delaying the bill until after the election.

“We are where we are, and we’ve got to do this right,” said Cullen. “It’s important. We’ll take the time required.”