B.C. plans to 'reconcile' by giving First Nations veto on land use

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Appeared in the National Post, February 1, 2024
B.C. plans to 'reconcile' by giving First Nations veto on land use

We live in strange times. A new generation of political leaders seems determined to cripple their own societies. Prime Minister Justin Trudeau, of course, comes to mind. But in Canada, he is not alone. In British Columbia, NDP Premier David Eby is preparing to bring his province to its knees.

The B.C. government plans to share management of Crown land with First Nations. The scheme will apply not to limited sections of public land here and there, but across the province. The government quietly opened public consultations on the proposal last week. According to the scant materials, the government will amend the B.C. Land Act to incorporate agreements with Indigenous governing bodies.

These agreements will empower B.C.’s hundreds of First Nations to make joint decisions with the minister responsible for the Land Act, the main law under which the provincial government grants leases, licences, permits and rights-of-way over Crown land. That means that First Nations will have a veto over how most of B.C. is used. Joint management can be expected to apply to mining, hydro projects, farming, forestry, docks and communication towers, just to start. Activities at the heart of B.C.’s economy will be at risk.

In 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP states, among other things, that Indigenous people own the land and resources of the countries in which they live. They have “the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired… to own, use, develop and control.”

At the time, Canada sensibly voted “no,” along with the United States, Australia and New Zealand. Eleven countries abstained. In 2016, Trudeau’s government reversed Canada’s objection.

As a General Assembly declaration, UNDRIP is not binding in international law nor enforceable in domestic courts. But in 2019, under the leadership of Eby’s predecessor John Horgan, the B.C. legislature passed Bill 41, the Declaration on the Rights of Indigenous Peoples Act. The act requires the government of B.C. to “take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.” Eby’s joint management plan is the next step in this project.

Long before UNDRIP, the Supreme Court of Canada created a constitutional “duty to consult” with Aboriginal peoples. The court said that the “honour of the Crown” governs the relationship between the government and Aboriginal people. The Crown’s fiduciary duties include a duty to consult whenever proposed action may adversely affect established or asserted Aboriginal rights under Section 35 of the Constitution. This duty is notoriously uncertain, onerous and time-consuming. It has become an albatross around the neck of the Canadian resource industry. The courts seem unable to specify what the duty to consult requires, except after the fact.

Now, the B.C. government aims to make things even more unpredictable. Whatever the contours of the right to be consulted, the Supreme Court at least has been clear that it does not constitute a veto. Eby will create one. Shortly before the B.C. legislature passed Bill 41 in November 2019, the Continuing Legal Education Society of British Columbia sponsored an Aboriginal Law Conference featuring several Indigenous proponents of the bill. They promised that the new law would render the province unrecognizable.

It will “set up a whole new norm,“ “give teeth to (UNDRIP),” and move the province away, if “not fully,” from the Westminster model of governance. The veto to be conferred on Indigenous interest groups, they said, will mean that “consent will not be given very often, if at all.”

“We’re not talking small changes; we’re talking big changes,” one speaker suggested, adding that money provided by the government so far hasn’t been enough.

“Compensation for sacred sites, for lands taken, for relocation… it’s going to be an overwhelming number of compensation claims… and so I’m hoping that the province is ready for that… Life (in B.C.) can and will change.”

For many, it is likely to change for the worse. B.C. could become an untenable host for land-based, resource-related enterprise. Impenetrable layers of red tape would entangle applications for leases and licenses. The price for First Nations approvals could be an increasing share of royalties and kickbacks, without which consent will be refused. Both governments and First Nations will siphon an ever-larger piece of a shrinking pie.

The government’s timeline is short. Written submissions will be accepted until the end of March, and anyone giving feedback will be limited by how little information the B.C. government has offered in the consultation. Bureaucrats will begin drafting amendments to the Land Act in early February, and the government plans to introduce a bill in April or May.

If you are feeling grateful not to live in B.C., don’t count your chickens. In 2021, Parliament passed its own version of B.C.’s Bill 41, the federal United Nations Declaration on the Rights of Indigenous Peoples Act. It requires the federal government to “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.” An action plan outlining more than 100 specific measures was released in 2023.

In a speech to the B.C. Business Council in 2016, I argued that our leaders could not do a better job of preventing Canadian business from succeeding in the global economy. I underestimated them. Their determination and ingenuity know no bounds.

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