“They’re using these Land Act planning processes to transfer enormous power to Indigenous groups as part of what I call a Faustian bargain.”
–Robin Junger
If there was a single issue in rural B.C. that edged the 2024 provincial election into a near-victory for the upstart Conservatives, it may have been the push by Premier David Eby to legally enshrine “shared decision-making” with indigenous people on Crown land use.
Opposition town hall meetings in early 2024 drew large, raucous crowds, concerned the NDP government’s proposed Land Act Amendments would give the more than 200 B.C. indigenous groups a legal veto over land use across the province’s vast public lands.
Word got out about the proposed changes, which amounted to Indigenous groups having a legal right to stop projects of their choosing, whether they occurred on Crown land, or were in the public interest or not.
A backlash rose up, largely from the business community, but also from residents living close to Indigenous nations where land use issues were already contentious.
“In the government’s rush to advance its reconciliation agenda, it is fair to ask who is looking after the interests of the 96 per cent of British Columbians who aren’t Indigenous,” wrote the Jock Finlayson and Ken Peacock in BIV, which was reposted to the Business Council of BC website.
In early 2024, after sustained pressure from Opposition and the public, the B.C. government withdrew the legislation. When former Lands minister Nathan Cullen announced the withdrawal, he blamed it on “dog whistle politics,” essentially saying the Opposition was stirring up racial prejudice.
In April 2024, Eby did a video interview with journalist Stuart McNish in his series Conversations Live. McNish asked him if the Land Act was off the table.
“That’s it for the Land Act. But that’s not it for the idea or the mechanism that the Land Act represents,” Eby replied.
“That’s it for the Land Act. But that’s not it for the idea or the mechanism that the Land Act represents.”
David Eby
“For example we’re doing landscape planning across the province where we have a nation, local government, industry, workers sitting around a table planning out land use in the broader area going forward, and Land Act-style mechanisms for those individual agreements could assist in implementation.”
In that video interview, Eby was also asked about the government’s just-completed move to recognize aboriginal title to all of Haida Gwaii, and if he intended to extend that to Crown land across the province. Eby sidestepped the question, talking about the uniquely defined territory of the Haida island group and indicating that the way forward for many Indigenous groups is via treaty, B.C.’s notoriously slow process for establishing title to portions of asserted traditional territories.
In a press conference after introducing the Haida Title Lands Agreement in legislation, attended by the premier and Haida council president Gaadwiis, Jason Alsop, the public got an answer to McNish’s question. When a reporter asked what the Haida agreement meant for Crown land in the archipelago, Alsop answered without hesitation, “Haida land!” while the premier stood by beaming.
Advocates go beyond courts to recognize unproven title
The late John Horgan’s government kicked open the door to a veto in 2019 when it made B.C. the first jurisdiction in the world to adopt the UN Declaration of the Rights of Indigenous Peoples (UNDRIP) and make it binding in provincial law. Again and again the public was instructed to ignore the plain meaning of the words “free, prior and informed consent,” and accept that it just meant more meaningful consultation.
That changed when Eby’s government put forward the Land Act changes.
The Eby government wanted to go beyond what was required under Canadian constitutional law, proposing the province and First Nations stand as equal decision makers over forestry, mining, roads, the works, on claimed territory, which in B.C. covers 95 per cent of the province.
Canada’s former prime minister Justin Trudeau and his then-attorney general Jody Wilson-Raybould were of a similar mind. Both asserted that as the proper rights and title holders, aboriginal people should have their claimed territory accepted by the Crown, without having to prove it in court.
“Instead of outright recognizing and affirming Indigenous rights — as we promised we would — Indigenous Peoples were forced to prove, time and time again, through costly and drawn-out court challenges, that their rights existed, must be recognized and implemented,” Trudeau told parliament in 2018.
By contrast, constitutional law requires proof of regular and exclusive occupation of lands to demonstrate aboriginal title. Once title is legally proven, Crown has certain legal duties.
In the case of claimed territory, where title has yet to be proven but rights are presumed to exist, courts have ruled those Indigenous rights require consultation. But Crown, in the form of the cabinet minister, remains the statutory decision-maker with the final word. The minister issues the permit. The minister has the final word, along with a constitutional duty to consult or accommodate.
UNDRIP talks about legislating the authority to enter into binding decision-making agreements with First Nations. With the Land Act amendments, Eby proposed doing exactly that. The amendments would’ve made First Nations equal statutory decision-makers on all claimed territory overlapping with B.C. public land.
Government inks land use agreements across BC
Proponents of the Land Act amendments argue that agreements flowing from those changes would have continued to be subject to judicial review and may have sped project approvals requiring Indigenous consent. Changes to the act would have also provided transparency to the process, a clear framework to negotiate, and the requirement to make the consultations public, according to advocates.
None of which can be said for the land use agreements the Eby government has been churning out with First Nations since the legislative amendments were abandoned. Most appear to be one-off incarnations of the Land Act amendments, negotiated without public knowledge until the deal is done and the premier’s office issues a press release.
So much for Eby’s commitment during last fall’s televised election debate when he said his government wouldn’t reintroduce the Land Act amendments because “we need to make sure that we have the confidence of British Columbians in doing this critically important work.”
The agreement with the Shishalh (Sechelt) Nation in the Sunshine Coast proposes joint decision-making, and in some circumstances confers sole land-use decision-making to the nation, over what is now considered Crown land. The province is negotiating with the Tahltan, Taku River Tlingit and Kaska Dene over a vast area of the northwest, and with the Tsilhqot’in over a larger area than what was granted in court as exclusive title land.
The latest land use plan announced was in late June with the Squamish Nation, establishing 33 cultural sites off limits to harvesting, new roads and tenures. And last year, the B.C. government paid $26 million for a derelict 2.5-acre parcel of land in Nanaimo to hand over to the Snuneymuxw First Nation, along with another $1 million in taxpayer funding to pay for site clear-up. The nation says the land is archeologically significant because it’s the location of a former village. The land purchase was part of a 2020 land transfer agreement to eventually return 3,000 hectares to the Snuneymuxw.
The province has also negotiated several agreements with First Nations that have resulted in repeated provincial park closures to the non-Indigenous public to allow for Indigenous cultural use activities.
NDP treat all of BC as title land, says critic
B.C. Conservative Opposition Leader John Rustad, who was the province’s minister of Aboriginal Affairs and Reconciliation for four years under the former BC Liberal government, says BC NDP’s handling of land use agreements is scaring away investment and blocking badly needed resource development.
“They have just done a deal with the Tahltan [First Nation] where they have frozen all permitting in the northwest of the province until they resolve a land use plan with the Tahltan. So for the next year, there’s going to be no permitting. And here’s the issue, we’ve got probably six or eight major mines up there that could be going forward now. You don’t just go to companies say, ‘Oh, you know, sorry, come back and talk to us next year.’
“Not to mention, what does that [land use] plan look like and how does that take into account the needs of all British Columbians? Not just the needs of the Tahltan people.
“What does that [land use] plan look like and how does that take into account the needs of all British Columbians?”
John Rustad
“So yes, we’ve got to address title. We’ve got to address rights. But right now this government is basically treating every square inch of the province as though it might be title, and the courts have said that’s not the case. And that is creating a huge expectation and huge problems.
“Until that gets resolved, it’s going to be extremely hard to imagine companies being able to convince their boards to be able to put significant resources into British Columbia.”
When asked about recognition of Haida title, Rustad said he had no problem.
“They were always going to win a title case,” he said.
“But title should never exist underneath private land. And it does there. Indigenous law will apply to your home, which means the First Nation will make a decision what you can and can’t do on that property. They can make a decision about taxation on the property, and you don’t get a vote.”
Land use deals give “legal teeth” to veto
Veteran lawyer Robin Junger, who first drew public attention to the Land Act proposal to grant co-management across the province, agrees.
A former deputy minister of energy and mines, head of B.C.’s Environmental Assessment Office and chief provincial treaty negotiator, Junger is back in private practice. One of his clients is the Pender Harbour and Area Residents Association, which is opposing the NDP government’s first effort to establish joint decision-making under B.C.’s Declaration of the Rights of Indigenous Peoples Act (DRIPA) on the Sunshine Coast.
“Usually land use planning is you bring all the interested parties together, the government coordinates, you come up with a document that’s not legally binding but it reflects the will of everybody involved and will help guide decision-making of statutory decision-makers etc.,” Junger said in an interview July 17.
“The stuff that they’re doing now is not that. It’s way, way more powerful, and it’s going to be given legal teeth.”
“If a land use plan is successfully finalized… it would be legalized to formalize direction to regulatory authorities.”
Lori Halls
In this new land-use planning environment, the statutory decision-makers of government have to abide by the plan agreed to by the Indigenous leaders and the province.
Therein lies the veto.
The “legal teeth” promise appears to be confirmed in a letter to the Pender Harbour group from Lori Halls, deputy minister of the Ministry of Land, Water and Resource Stewardship.
“If a land use plan is successfully finalized and adopted by B.C. through a mandate, then it would be legalized to formalize direction to regulatory authorities to align their management directions with the plan,” Halls wrote on June 12.
‘Faustian bargain’
Junger says sharing decision-making with an Indigenous group that also has an equity stake in a project creates a conflict of interest.
Whether it’s a wind farm, a mine or other project, controlling the granting of permits may mean overruling the independent decision-making of the Environmental Assessment Office or other agency that works on behalf of the Crown.
“Usually land use planning bring[s] all the interested parties together… [it’s] not legally binding but it reflects the will of everybody involved.”
Robin Junger
Meanwhile, with the Site C dam and LNG Canada completed, the province is losing people, investment and its credit rating as debt piles up faster than it has in the past 50 years.
Junger says the political motivation to break the long-standing logjam of Indigenous rights and title to land is urgent for Eby’s NDP to gain re-election.
“So I think they’re using these Land Act planning processes to transfer enormous power to Indigenous groups as part of what I call a Faustian bargain, where they’ll get a few major projects approved with First Nations consent.”