The BC government is currently experiencing backlash for proposing amendments to the Land Act that could allow the Province to implement joint or consent-based decision-making agreements with Indigenous governments in relation to lands within their territories. The idea that the Province might enter into such agreements has been described by the Conservative Party of BC as an “assault on land rights” while BC United Leader, Kevin Falcon, tweeted his “serious concern” that the amendments would “have massive impacts for the public and our whole economy.”
There is no doubt that the Province could have been more proactive and transparent in explaining the need for the Land Act amendments and announcing the consultation; the Minister has acknowledged as much. But recent commentary, including from some lawyers, misses the mark for a number of reasons and has poured unnecessary gasoline onto a communications gaffe.
After weeks of controversy, the BC government announced that it has decided not to proceed with the proposed amendments, noting that the Province will continue working to demonstrate the benefits of joint-decision-making. While we are disappointed by the delay, we hope this blog post helps to explain the need for similar amendments in the future.
What is the government consulting on?
As the government’s consultation summary explains, the proposal is to amend the Land Act to allow the Province to “enter into agreements with Indigenous governments to share decision-making on the use of public land together.” The Province has not given a lot of detail here, but the general purpose is to allow it to work with Nations to manage some aspect of land use in their territories.
Context matters here: when Britain asserted its sovereignty over what is now British Columbia, it largely failed to sign treaties with the existing Nations, and it failed to recognize or address the legal status of those Nations’ land rights and existing legal structures.
These legal failures (with a few notable exceptions) continue to this day, and the result is a legal mess. Decades of expensive litigation by First Nations (with the resulting uncertainty for everyone) has established that First Nations’ title and rights continue to exist in BC, but the pace of judicial or political recognition of these rights has been glacial.
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. The courts have made it clear that the Crown has a constitutional duty to consult First Nations about proposed decisions or conduct that might adversely impact their title and rights – but this is not the end of the story. Rather, it is a minimum standard that was intended to apply in the “interim period” during negotiations to reconcile the asserted sovereignty of the Crown with preexisting Aboriginal title.
The Land Act amendments, and the Declaration on the Rights of Indigenous Peoples Act (DRIPA) that they are intended to implement, need to be understood in this context. They create a pathway for negotiation that may, in the future, and if the Province agrees, give limited effect to First Nations governance rights in particular narrow circumstances, potentially avoiding expensive and protracted litigation that might otherwise be required to recognize these rights.
Indeed, there are examples of responsible mining companies voluntarily recognizing the legal authority of First Nations, rather than facing the ongoing uncertainty of possible legal challenges.
What is joint decision-making?
If you read through the commentary on the proposed Land Act changes carefully, you’ll find one resource quoted more than pretty much any others, and it’s not the actual proposal that the government is consulting on: it’s an “Indigenous Law Bulletin” prepared by a private law firm (the McMillan Bulletin). This bulletin was referenced by Vancouver Sun columnist Vaughn Palmer in the first major media coverage of the proposed amendments, as well as in many other media stories and by many of the critics of the proposed amendments.
Regrettably, this bulletin sent the conversation about the Land Act amendments off on the wrong track from the beginning by conflating “joint decision-making” with “a veto power over decision-making about Crown land tenures.”
Joint decision-making, as the phrase implies, is about working together to make decisions. 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. Confusing the two is extraordinarily unhelpful.
As a legal concept, “joint decision-making” is well recognized in the context of family law, with parents often having joint decision-making over children:
Having joint decision-making responsibility means that the parties must have a meaningful consultation with one another when an important decision arises and must attempt to make a joint decision in the best interests of their child. It is well recognized by the courts that joint decision-making responsibility requires a degree of cooperation between the parents and the ability to effectively communicate with each other. (S.L.A. v. D.A.S., [2023] N.B. King’s Bench).
Similarly, the approach advanced through DRIPA is one of “consultation and cooperation.” “Joint decision-making” does not necessarily mean that one party has the unilateral power to block a final decision. An agreement between a First Nation and the BC government can identify how disputes will be resolved.
For example, the Haida Gwaii Reconciliation Act (building on the negotiated Kunst'aa guu – Kunst'aayah Reconciliation Protocol between BC and the Council of the Haida Nation) provides for joint decision-making by the Haida Gwaii Management Council. This Council is made up of two Haida and two provincial representatives, and a chair appointed by both. The Council has the legislative authority to make certain decisions jointly by consensus, such as setting the allowable annual cut for logging on Haida Gwaii. But in the absence of consensus, a decision is made by majority vote. In the event of a tie, the chair casts the deciding vote.
The McMillan Bulletin notes:
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 (emphasis added).
This is correct but 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.
The work of our legal team over the past 20 years with Nations who are engaged in revitalizing and applying their laws on the ground leads us to the informed conclusion that a legal pluralistic approach that braids together Crown and Indigenous laws and decision-making processes has the strong potential to result in better decisions for all.
Moreover, there are any number of statutes which provide for arms-length public bodies, other levels of government (i.e., municipalities) or even private corporations to exercise certain statutory powers. So it’s a bit surprising that this is only a concern when the government/body in question is Indigenous.
Within a Nation’s territory, is it really so wrong that the Crown and the Nation that has stewarded those lands for generations should work together to make certain decisions about land use?
The Constitutional and Legal Context
According to McMillan LLP, “these amendments would go much further than the Supreme Court of Canada’s rulings based on the recognition of Aboriginal rights …,” which, they state includes “the right to be consulted before decisions are made that could affect them,” but not a “veto.”
Not quite. The courts have held that “[w]here title is asserted, but has not yet been established, s. 35 of the Constitution Act, 1982 requires the Crown to consult with the group asserting title and, if appropriate, accommodate its interests.”
However, in the landmark Tsilhqot’in v BC decision, the Supreme Court of Canada was clear that: “Once Aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the Aboriginal group” or if a stringent justification test is met [emphasis added].
A consent standard was also referred to in the 1997 Delgamuukw and Gisday wa decision from the Supreme Court of Canada. It is also the legal standard set out in the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), which BC has legislatively affirmed applies to the laws of British Columbia. Article 32(2) reads:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
A consent standard is closely linked to the right of self-determination.
But is it a veto? No. 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. Donald Trump, for example, used his veto power at least 10 times as US President.
“Consultation and cooperation”, “joint decision-making” and negotiated “consent-based agreements” as contemplated by DRIPA and the proposed Land Act amendments are a far cry from this kind of top-down use of executive power…
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
The McMillan Bulletin goes on to question the government’s stated reason for proposing the amendments – referring to the UN Declaration as “not legally binding.” The UN Declaration is a resolution passed by the United Nations General Assembly, with overwhelming support from the nations of the world (only four nations, including Canada, initially voted against it). Canada announced its adoption of the UN Declaration, without qualification, in 2016. The Supreme Court of Canada has noted that:
“While the Declaration is not binding as a treaty in Canada, it nonetheless provides that, for the purposes of its implementation, states have an obligation to take, “in consultation and cooperation with indigenous peoples, . . . the appropriate measures, including legislative measures, to achieve the ends” of the Declaration (art. 38).”
Canada has implemented legislation affirming that the UN Declaration is “a universal international human rights instrument with application in Canadian law,” while BC’s DRIPA provides that one of the purposes of the statute is “to affirm the application of the Declaration to the laws of British Columbia.” Furthermore, section 8.1(3) of BC’s Interpretation Act requires that: “Every Act and regulation must be construed as being consistent with the Declaration.”
Case law is still evolving with respect to interpretation of DRIPA and the equivalent federal statute. But given the Supreme Court of Canada’s recent decision upholding the constitutionality of the federal Act respecting First Nations, Inuit and Métis children, youth and families, there should now be no question, in the words of Canada’s highest court, that “the Declaration has been incorporated into the country’s positive law.”
The reality is that DRIPA (a BC statute passed unanimously by all parties in the BC Legislature in 2019) is now part of our laws. And DRIPA requires that the government of BC “[i]n consultation and cooperation with the Indigenous peoples in British Columbia … take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.”
When DRIPA was enacted in 2019 it was publicly supported by a broad cross-section of BC society, including industry. For example, Val Litwin, President and CEO of the BC Chamber of Commerce, stated at the time:
We believe this legislation is the start of a long-term conversation that has the potential to lead toward clear and meaningful collaboration between government, Indigenous groups and the business community. Practical implementation of the legislation’s intent will be vital. But our network believes a shared decision-making process between Indigenous peoples and government must be pursued and has the potential to create greater certainty for business.
Proposed Land Act amendments are merely a procedural step in further incremental implementation of the commitments and legal requirements set out in the widely supported and endorsed DRIPA legislation from 2019.
Leading questions
While we agree that the government’s PowerPoint posted in support of the consultation does not answer important questions, the questions that McMillan LLP closes out its bulletin with suggest certain assumptions about First Nations and the role that Indigenous governments play, while ignoring the many ways that the BC government and other parties have exploited Indigenous lands, taking billions of dollars, and leaving little benefit for Indigenous communities.
At the same time, the McMillan Bulletin fails to ask questions about how the Land Act amendments can best address the uncertainty that has come with the lack of treaties and failure to recognize the inherent title of First Nations in what is today British Columbia.
Make your voice heard!
The McMillan Bulletin encourages “companies and industry associations that rely on Land Act tenures” to participate in the government’s consultations, giving us a hint about who they were writing to all along.
We know that most British Columbians support reconciliation and recognize that it requires First Nations to have a direct say about what happens on their territories. Please take a moment to tell the BC government that you support the Land Act amendments and implementation of BC’s commitments to Indigenous Peoples in the Declaration on the Rights of Indigenous Peoples Act. Submissions can be emailed to LandActamendments@gov.bc.ca
Editor's note: This post was edited on Feb. 21 to include a reference to the BC government’s decision not to proceed with the proposed Land Act amendments.
Photo: Haida Gwaii, Haida Nation Territory. Cory Schadt via Unsplash.