BC land management failures are a cautionary tale, says critic

Written By Ellis Ross

There’s very good reason for the public to be concerned about the BC NDP government’s proposed land management amendments, but First Nations should be on their guard as well.

Two recent land management initiatives have met with public outcry and lawsuits alleging the BC government betrayed the honour of the Crown, and they may well serve as a warning for what to expect if the province revives its proposed Land Act amendments. 

The first was the Treaty 8 negotiations, which have spiralled into two First Nations suing government for adversely affecting their treaty rights.

The second is the lack of an open and transparent public consultation on proposed changes to how land is managed in the province.

Both failures are due to intentionally ignoring what the courts have directed governments to do in relation to Aboriginal rights and title. 

Halfway and Doig allege Treat 8 negotiations in ‘bad faith’

Halfway River and Doig River First Nations are taking the B.C. government to court. At issue is the January 2023 land management agreement between the province and Blueberry River First Nation, which Halfway and Doig allege gives Blueberry River veto over land use in their respective territories. 

In two separate petitions filed with the Supreme Court of BC, Halfway River and Doig River claim the B.C. government “deceived,” “misrepresented” and “withheld” information from them about the contents and intended effects of the Blueberry land use deal that negatively impacted their treaty rights.

To be clear, an agreement was needed as the 2021 Yahey Supreme Court of BC decision declared the province had infringed on Blueberry River and other Treaty 8 rights. The court told government to remedy the cumulative past impacts of industrial development on Blueberry and Treaty 8 territory.

The province and Blueberry negotiated the Blueberry Agreement, which, among other things, limits future land disturbance, caps oil and gas development, and tees up a $200 million land restoration fund, giving Blueberry priority over other Treaty 8 nations on shared territorial claims.

The province also sat down with four other Treaty 8 nations – Doig, Halfway, Saulteau and Fort Nelson – to negotiate a consensus document and Letters of Agreement.

Doig River and Halfway River signed letters of agreement with the province before seeing the Blueberry agreement and now accuse the government of negotiating with omissions and misrepresentations.

“[Consultations were] characterized by neglect, misrepresentation and bad faith.”

Halfway River petition to Supreme Court of BC

Doig River’s court filing states: “The Province misled Doig into believing that the Blueberry Agreement would not undermine or frustrate those commitments. It was not until after the Blueberry Agreement became publicly available that Doig was able to fully appreciate that what the Province had agreed to with Blueberry differed from how it had been represented.”

 The Halfway River petition alleges its consultation with the province regarding the Blueberry Agreement “was characterized by neglect, misrepresentation and bad faith.”

 Specifically, Doig and Halfway allege provincial negotiators failed to share that Blueberry would have “a broad veto” on oil and gas development, a veto on the conversion of Crown forest to fee simple land, and exclusive land planning rights despite the province committing to a consensus-based process for all nations with overlapping claims.”

Negotiations brought ‘honour of the Crown into disrepute,’ says Doig

Doig River and Halfway River are no strangers to caselaw in general and specific to their Treaties.

Their claims, if true, are shocking and disturbing. Especially considering these First Nations raised their concerns while signing placeholder agreements under the premise the issues would be addressed while the Blueberry Agreement was being completed.

Unfortunately, these First Nations trusted the current B.C. NDP Government and has no trust going forward.

“Doig has no confidence that the Province will consult in good faith to seek meaningful mitigation and accommodation measures that fully addresses the adverse effects on Doig’s treaty rights,” reads Doig’s court filing. “The Province’s single-minded effort to conclude the Blueberry Agreement at any cost has undermined reconciliation with Doig and brought the honour of the Crown into disrepute.”

“Doig has no confidence that the Province will consult in good faith…”

Doig River petition to Supreme Court of BC

Reconciliation as defined by the courts relies heavily on “the Honour of the Crown”.

Omitting or misrepresenting information is dishonourable especially when it is done intentionally by government.  

The B.C. NDP government is aware specifically of the Supreme Court of Canada’s rulings in the 2004 Haida and 2014 Tsilqhot’in decisions.

The Haida Court decision determined a few points including duty to consult and more, but the most important was that the Crown (government) must act honourably in its dealings with Aboriginal peoples. 

Crown-First Nations relations were on a good path

Through hard work, from 2004 to 2017, as the courts have been stressing, Crown-First Nations reconciliation had been realized by government, proponents and the nations.

I was part of a First Nation band (Haisla) that helped develop reconciliation protocols way back in 2004. B.C. was on a good path on behalf of all British Columbians up until 2017, as proven by Forest and Range agreements and Haisla’s partnership with LNG Canada.

So why go backwards? 

I’m not sure why.

We now know the current B.C. government views their own DRIPA (Declaration on the Rights of Indigenous People) legislation as NOT legally enforceable and is only an “interpretive aid.” The BC Supreme Court agreed with this argument. But even that document suggests government must act honourably. 

If what Halfway River and Doig River are alleging is true, it is the worst case of dishonourable behaviour I’ve seen any level of government exercise in the past 20 years. 

Anyone with knowledge of the relevant Canadian case law reading the petitions of Halfway and Doig River will find it hard to believe our present government would use pre-2004 tactics on First Nations who were following court and government direction with complete trust.

Public outcry stalls proposed land management changes (for now)

The second mis-managed land use initiative related to First Nations is the NDP government’s now stalled proposed amendments to give Indigenous governments statutory decision-making on land management. 

Some critics fear this will give First Nations a veto on land use, and as with UNDRIP debates, the NDP government played word games with “consent” and “veto.” Halfway River and Doig River both claim that a veto does exist, and not only excludes them from their own territorial decisions, but withholds permits.

The BC United Party held townhalls on the proposed changes to the Land Act, because emails have been flooding our offices. We’re sure government received them as well. 

At these town halls, we had be honest and say we only knew as much as B.C. citizens, because we found out about land use changes the same way as everyone else – a lawyer discovered a buried page in a government ministry website, posted a note about it, and a journalist found out and published it. 

At the very least, the BC NDP government should’ve done these townhalls, getting the feedback and incorporating what they heard into their proposed legislation. 

The proposed changes as government laid out, represent a major shift in land management. They shouldn’t be developed in secret.

In the absence of being informed, people were worried and angry.

But the government knew any announcements about changes to land use decision-making would scare British Columbians who rely on permits for hunting, fishing, farming, logging and hiking. Government knew communities would be divided over this fear, but still we haven’t seen any real discussion of facts.

The results were predictable.

In the absence of being informed, people were worried and angry. Their concern was real and deserved to be discussed in a way that doesn’t cause animosity between natives and non-natives. 

Without meaningful public discussion, animosity will grow

In fact, the 2004 Haida court case speaks to how this animosity should be avoided. The court understood that rights and title on the spectrum demands meaningful consultation and participation from all sides. But the court pointed out that the government has competing priorities, meaning societal interests at large.

Governments, by all means, have to consider rights and title interests, but the court said those must be balanced with societal needs. 

A veto does not cover society’s interests, nor does it cover the interests of neighboring First Nations who may claim the same land. 

Today’s society expects their government to provide and manage resources and services like healthcare, education, highways, infrastructure, energy, forestry, mining and recreation. These are services that all walks of life depend on and the courts recognize this. 

But we haven’t even got to this level of discussion on the proposed changes to the B.C. Land Act because to date, the government has only had low-key discussions with hand-picked participants. 

To date, the government has only had low-key discussions with hand-picked participants. 

It’s doubtful we’ll even hear the opinions of stakeholders as the government website assured that all submissions would be kept private. Which is in line with other cases involving legislation this government has developed, where people and organizations have been required to sign confidentiality agreements to participate in development. 

This results in government-only approved communications reaching the public. Dissention or contradiction is erased and if anything controversial turns up in some documents, it’s redacted (key information blacked out.)

If the idea is not to unreasonably deny access to Crown land or there is no risk to permits being issued or authorizations approved, then why doesn’t government come out to the general public and prove it?

With no meaningful public consultation, the animosity will grow and society in-fighting will escalate, while government members sit back and watch comfortably from Victoria.

Written By Ellis Ross
Ellis Ross was Chief of Haisla Nation when his community partnered with LNG Canada to develop a liquified natural gas facility and marine terminal on its territory. He is the BC United MLA for Skeena and opposition critic for Energy & LNG.

Banner photo: Confluence of Smoky and Peace rivers [Mhalifu, Wikipedia] ; Author photo: [Chad Hipolito]