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Why Land Act changes are causing angst in B.C.

Land Act is just one of the statutes to be amended to conform to DRIPA
Robin Junger of McMillan law firm, which said in a recent bulletin that consent agreements could give First Nations veto powers on land use decisions. | Nelson Bennett

In 2019, the B.C. government passed the Declaration on the Rights of Indigenous Peoples (DRIPA), which the government said would require rewriting numerous statutes. The Land Act is just one of them.

In 2022, the B.C. government and Tahltan First Nation entered a consent-based agreement that gave the Tahltan co-decision making powers related to the Eskay Creek mine project.

No one objected.

So, now that the B.C. government is planning to amend the Land Act to make similar consent agreements available to other First Nations, why is it suddenly causing such consternation in B.C.?

The opaque way in which the government has gone about a public engagement process on Land Act amendments – i.e. without publicizing it or even notifying some stakeholders, like the Association of Mineral Exploration (AME) – appears to be part of the concern.

But one of the legal experts who brought the changes to the attention of the media and public in the first place says he thinks the magnitude of the changes taking place -- as a result of enacting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) through DRIPA – is only now starting to hit home for some.

When DRIPA was enacted in 2019, Robin Junger of McMillan LLP wrote in the Vancouver Sun that "it will likely be impossible for government to live up to the expectations that Indigenous groups will now reasonably hold, without fundamentally affecting the rights and interests of third parties."

“I don’t think people really understood the impact until the government started to actually amend our laws to match up with UNDRIP,” Junger told BIV News. “The Land Act amendments have now made the issue concrete and understandable to the average person.”

Nathan Cullen, Minister of Water, Land and Resource Stewardship, accepts responsibility for the way the engagement process was rolled out, but defends the changes.

"I take full responsibility in terms of the rollout...and we'll do better," he told BIV News. He said his government has been holding information sessions with stakeholders, and said amendments to the Land Act will not be done until consultations are done.

A central concern of the changes being made to the Land Act is that the B.C. government is devolving Crown powers to First Nations in a way that could make resource development in B.C. even more bureaucratic than it already is.

Tom Isaac, who leads the aboriginal law group at Cassels, notes there are roughly 200 First Nations in B.C., and he wonders how decisions will get made when there are dual authorities.

“Is a province governable with that kind of a dissolution or divestiture or governing authority?” he wonders. “How are we going to plan on governing a province with potentially 100, 150 different governing type agreements? What about over-lapping territories? Are we contemplating having one, two, three four of these agreements potentially applying?"

When DRIPA was passed, unanimously, in the B.C. Legislature in 2019, the government clearly stated it would need to amend numerous provincial statutes to give DRIPA legal force. The Land Act is just one of them, but it’s one that affects the economic backbone of B.C. – resource companies.

About two dozen different types of activities are governed by the Land Act, from communications towers and "waterpower" projects to agriculture. Currently, the sole decision-maker is the relevant provincial minister. That will change with consent agreements, with decisions on Land Act matters to be shared between the minister and Indigenous Governing Bodies (IGBs).

The B.C. government recently started an engagement process on the proposed Land Act amendments, though it did so quietly, without so much as a news release, and without notifying certain industry associations like the AME, which clearly has an interest in land use decision making.

McMillan brought the engagement process to light in a legal bulletin that warned the consent agreements proposed would appear to give First Nations “a veto power over decision-making about Crown land tenures.”

Cullen insists co-decision making does not give First Nations veto powers, and added many resource companies support the plan for dual decision making.

"It holds both parties -- B.C. and whichever nation we enter into an agreement (with) -- to the same standard of judicial review, administrative fairness, all the things that courts protect when someone is going through an application or a tendering process."

The Canadian Association of Petroleum Producers (CAPP) said it is concerned about the proposed changes, due a lack of clarity on just what it might mean for the oil and gas sector in B.C.

"The lack of details regarding how the Land Act amendments would impact regulatory certainty, as well as the short consultation timeline, are of concern," said Richard Wong, CAPP's vice president of regulatory and operations.

The timeline referred to is March 31, which is the deadline for stakeholders to write the government about the proposed Land Act changes.

Ellis Ross, former Haisla First Nation chief and current BC United (formerly BC Liberal) MLA, was one of the few B.C. politicians who publicly voiced concerns when DRIPA was being crafted and adopted.

He considers DRIPA and UNDRIP to be subordinate to and “redundant” to Canadian laws already in place, such as Section 35 of the Canadian constitution and certain case law – notably the Haida ruling of 2004 -- in terms of protecting aboriginal rights.

As he describes it, those laws place duties on the Crown to consult First Nations, but without abrogating the Crown’s fiduciary duties to all Canadians.

“The way the NDP have rolled this out, in a number of different forms over the last couple of years, you haven’t really meaningfully included the larger society, and that puts First Nations in a very awkward position,” Ross told BIV News. “You put First Nations front and centre, so a lot of the larger society start to blame First Nations, and really it’s not the First Nations’ fault.”

A senior government official, speaking on background, tried to clarify what what the consent agreements will and won’t do, and one thing they won’t do, he said, is give First Nations a veto over land use decisions.

Should a First Nation reject a project or tenure or licence as part of a consent agreement, a company disagreeing with the decision could apply for a judicial review, he said.

Radha Curpen, co-head of Bennett Jones’ Environmental Law practice, noted that British Columbians can expect more discussions ahead about legal changes related to DRIPA, as other provincial statutes will also need to be amended.

“There’s going to be a lot more of this,” she said. “It’s going to change the way we do things.”

(This story was updated with comments from Nathan Cullen, minister of Water, Land and Resource Stewardship.)

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