‘Veto’ versus ‘consent’ at core of Land Act controversy

Written By Keith Norbury

The recent furor over proposed amendments to B.C.’s Land Act centres around “consent,” specifically, the super-charged “free, prior, and informed” form of “consent.”

The B.C.’s NDP government recently cancelled consultation into planned legislation that would give First Nations joint statutory decision-making on land use after the proposal met with public outcry and opposition from BC United and the BC Conservative Party. But the topic is going to crop up again, especially during the coming provincial election campaign. Even if the New Democrats would prefer to ignore the whole imbroglio until after Oct. 19.

The burning question that generated such vociferous resistance is the one the B.C. government attempted to avoid, and continues to deny. Do the amendment changes giving First Nations statutory decision-making on land use constitute a veto power?

The ordinary meaning of the word “consent” would suggest “yes.” The supercharged “free, prior, and informed” version would scream, “hell, yes.”

The website thesaurus.com lists “veto” as among the strongest opposites of consent (along with the likes of denial, refusal, and rejection).

The meaning of consent can also include “acquiescence,” which sounds like caving in. Acquiesce can mean “to assent tacitly,” or “submit or comply silently or without protest.” Neither of those things are what First Nations have in mind, which is where “free, prior and informed” comes in. 

Is withholding consent a veto by another name?

As defenders of the consent requirement point out, the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) does not use the exact word “veto.” On the other hand, it’s pretty obvious that the requirement for consent will necessarily involve occasions where an Indigenous governing body withholds consent.

“Consent ‘must include the option of withholding consent.’ This conclusion clearly makes sense. It would be absurd to conclude that Indigenous peoples have the right to say ‘yes’, but not the right to say ‘no’ – even in the most damaging circumstances,” writes Ontario/Quebec lawyer Paul Joffe, a specialist in Indigenous rights.

Then again, Joffe also notes, “‘Veto’ implies an absolute power, with no balancing of rights. This is neither the intent nor interpretation of the UN Declaration, which includes some of the most comprehensive balancing provisions in any international human rights instrument.”

UNDRIP balancing provisions prevent veto

Defenders of the proposed Land Act changes make similar arguments. They say changes are based on B.C.’s Declaration of the Rights of Indigenous Peoples Act, which in turn is based on UNDRIP. In fact, it says right in DRIPA that one of its purposes is “to affirm the application of the [UN] Declaration to the laws of British Columbia.”

Most of DRIPA’s wording is actually a cut-and-paste of UNDRIP, which is embedded as a schedule to the B.C. law.

It would have been very helpful for defenders of DRIPA, and its application to the Land Act, to outline the UNDRIP balancing provisions that prevent the “right to say no” from becoming an absolute veto.

They are right there in plain sight at the end of UNDRIP in Article 46 (1): “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.” 

It makes perfect sense that the United Nations, whose members are sovereign states, would be keen to protect “the territorial integrity” and “political unity” of its member states. 

Exactly what “political unity” of a sovereign state means, however, is as open to interpretation as the word “veto.” And it may be the political unity that fueled the passage of DRIPA has shattered because of differing interpretations of both.

Courts may decide impasse

An outline of the proposed changes states emphatically that “Agreements do not provide a ‘veto’ and require due process.” It also references B.C.’s DRIPA “as the framework for implementing” UNDRIP.

The proposed Land Act changes also note that anyone “affected by decisions made under joint or consent-based agreements will continue to be able to seek review of the decision by the courts.” It’s not clear from that wording if anyone can seek such a review where consent isn’t granted.

It’s also far from clear what happens in cases, which are bound to arise, where consent is required from multiple First Nations and at least one of those First Nations withholds consent. 

Often the courts end up deciding these types of impasses.

No veto in UNDRIP

“To look at the issue from the Crown or project proponent perspective, the fact that Indigenous groups have ‘no veto’ does not mean that the project will necessary go ahead. The Court will determine whether the procedural and substantive standards have been met,” wrote Shin Imai of York University’s Osgoode Hall Law School in a 2017 paper.

Conversely, West Coast Environmental Law pointed out, “Again and again, the Canadian courts have encouraged the Crown to negotiate its way out of this mess, rather than battling it out in the courts” and “a ‘veto,’ where one party simply blocks a decision without working with the other, is not a feature of joint decision-making, but a failure.”

“A ‘veto’ … is not a feature of joint decision-making, but a failure.”

West Coast Environmental Law

Interestingly, “joint decision-making,” like “veto,” doesn’t appear anywhere in UNDRIP. In fact, the word “joint” doesn’t show up in UNDRIP at all. Instead, “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights … as well as to maintain and develop their own indigenous decision-making institutions.”

Stuck in semantic purgatory

DRIPA’s section 7, entitled, “Decision-making agreements,” leaves open the prospect of “the exercise of a statutory power of decision jointly by (i) the Indigenous governing body, and (ii) the government or another decision-maker.”

That sounds like an option for the government to override part B of section 7, which requires “the consent of the Indigenous governing body.” 

Or does it? If the parties can’t reach a joint decision AND an Indigenous governing body doesn’t consent, what is that? 

It’s not a “yes,” that’s for sure. And it’s not a “no” if no means “veto.”

It sounds stuck in a semantic purgatory or lost somewhere in Humpty Dumpty territory: “When I use a word, it means just what I choose it to mean — neither more nor less.” 

Veto a touchy topic

Along the way, veto has become a touchy word, verging on taboo.

The Union of BC Indian Chiefs posted about “the lazy and incoherent conflation of ‘consent’ and ‘veto.’” However, the Indigenous Environmental Network felt free to conflate: “While companies should set Free, Prior, and Informed Consent as an ideal standard, only Indigenous communities have the right to a project veto.”

“Only Indigenous communities have the right to a project veto.”

Indigenous Environmental Network

So, we’re back to the original beefs about the proposed B.C. Land Act changes. Does the refusal to consent — which is an obvious potential outcome if consent is required — represent a veto? Does it matter?

Meanings of “veto” include “to prohibit emphatically.”

West Coast Environmental Law says, “Legally the word veto refers to situations where a chief executive, typically a president or a monarch, has the legal authority to unilaterally reject a law or proposal from a law-making body like a legislature.” Leaving aside the notion that a First Nations chief is a “chief executive,” that’s a narrow definition of “veto.” 

A dictionary.com definition describes “veto” as “the right of one branch of government to reject or prohibit a decision of another branch.”

The Law.com dictionary doesn’t offer a meaning for veto. But it defines consent as a voluntary agreement to another’s proposition.

Putting veto aside, everyone agrees consent is required.

No could mean no, maybe or yes

When we think of consent in sexual relations, the phrase “no means no” is a hard no. “Free, prior and informed” is baked into sexual consent. That’s not the “acquiescence” form of consent, which has an air of “no that could mean yes” about it.

In other contexts, such as engagements with First Nations, the expression “free, prior and informed” is needed to create a straitjacket of meaning around “consent.” The straitjacket transforms “consent” into an expression that if it isn’t precisely cognate with “veto” certainly quacks like it.

“Free” would mean free of acquiescence, cajoling, seduction, inducement, coercion, nudging, bribery, etc. “Prior” would negate the hallowed principle of “better to ask forgiveness than seek permission.” And “informed” flips the onus from “buyer beware” to a requirement for transparency. 

Of course, the legal meanings of words don’t always jive with their ordinary applications. That’s true even if a law firm specializing in Indigenous law was among the first to argue that the consent within proposed Land Act changes amounts to a veto.

“The Crown alone will no longer have the power to make the decisions about Crown land.”

McMillan LLP

“Under the amendments being proposed by the B.C. government, changes will be made to enable agreements with Indigenous groups such that they will be provided a veto power over decision-making about Crown land tenures and/or have ‘joint’ decision making power with the Minister,” stated a Jan. 24 posting on the website of McMillan LLP.

“Where such agreements apply, the Crown alone will no longer have the power to make the decisions about Crown land that it considers to be in the public interest,” the McMillan bulletin noted.

Does Crown have power to make decisions in public interest?

West Coast Environmental Law agreed, but said it “must be understood against the shameful and harmful legacy of impacts of unilateral Crown decision-making on First Nations peoples and territories over the past 150 plus years.”

However, if the Crown (read sovereign B.C. government) has no power to make decisions in the public interest, does that mean section 46 of UNDRIP doesn’t provide the balance scholars like Joffe insist it does? Would that not be an impairment of the territorial integrity or political unity of the sovereign entity of B.C.?

Political columnist Vaughn Palmer of the Vancouver Sun opened up this can of worms when he pointed out the NDP government had “quietly launched public consultation” on changes to the Land Act. “The ministry did not publicize the invitation with a news release, suggesting the government is not all that keen to attract attention to the exercise,” Palmer opined.

That touched off the imbroglio, which included attacks on the process of consultation and the proposed amendments themselves from Opposition leader Kevin Falcon of BC United and John Rustad, B.C. Conservative leader, who both voted in favour of DRIPA as MLAs when they belonged to the BC Liberal Party (now the BC United).

BC government ‘put First Nations in the middle unnecessarily’

BC Green Party MLA Adam Olsen, a member of the Tsartlip First Nation slammed both leaders for what he perceived as the hypocrisy of supporting DRIPA but not the Land Act changes. Olsen also criticized the NDP, Lands Minister Nathan Cullen in particular, for their clumsy handling of the consultation process, which “put First Nations in the middle unnecessarily,” according to one of Palmer’s follow up columns. 

The BC government’s handling of the Land Act consultations “put First Nations in the middle unnecessarily.”

Adam Olsen

While Cullen issued a mea culpa when he announced government was suspending its public consultation of the Land Act and pressing pause on new legislation, he took a swipe at critics for their “dog whistles.” That definitely missed the point. It’s possible to support DRIPA and also criticize the government for its handling of the consultation. If the government wasn’t being a little sneaky about it, it was at least incompetent. Times Colonist columnist Les Leyne wondered how Cullen was able to hang on to his cabinet post after the whole sorry episode.

Whenever consultations on changes to the Land Act reopen, whoever is in charge should point explicitly to the parts of B.C.’s DRIPA that show First Nations don’t really have a veto. Unless their actual intention is to give them a veto, which would go beyond section 7 and the last article of UNDRIP.

“Indigenous rights may be subject to limitations or lawful infringement, based on strict criteria that can be objectively determined,” noted Joffe, referencing the article in UNDRIP on limitations being “non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.” 

Ultimately, it’s up to the B.C. government to come clean, acknowledge the genuine confusion, and resolve the duality of intention. Otherwise the courts will decide.