Delaying the Braid: British Columbia Pauses Proposed Amendments to the Land Act (British Columbia)

By Katłįà Lafferty and James Struthers

As part of the Province’s ongoing efforts to align provincial laws with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), BC had proposed amendments to the Land Act (British Columbia) (“Act”) that would have included the following:

• Allow individuals who fish, hunt and recreate to continue to do so on the land, and will allow ranchers and farmers to continue their way of life and important work.
• Have no effect on tenures, renewals, private properties, or access to crown land.
• Provide durability of decisions that will help to unlock B.C.’s economic potential.
• Ensure transparency and public consultation in any future agreement on shared decision-making negotiated by a First Nation and the Province.
• Require that the public, stakeholders and proponents are engaged in the discussion of any agreement that contemplates changes or impacts to the public or third-party interests.

The Government of British Columbia recently dropped its consultation efforts on the proposed amendments. The Province’s consultation website expressly stated that the changes will not lead to broad, sweeping or automatic changes, grant a veto to First Nations or compel the government to enter into an agreement.

The concerns expressed by non-Indigenous stakeholders, as noted in Minister of water, Land and Resource Stewardship Nathan Cullen’s public announcement, appear to be based on intentionally distributed misinformation, and also betray not only a poor understanding of the provincial legal framework within which all economic actors operate in British Columbia, but of constitutional law, Indigenous legal orders, and the rule of law.

The proposed amendments were intended to improve collaboration and consultation on major projects, update the Act to align  with UNDRIP pursuant to BC’s obligations under the Declaration on the Rights of Indigenous Peoples Act (British Columbia) (“Declaration Act”), ensure the Act expressly permits shared decision making agreements which is already a common practice, provide a mechanism by which Nations and the Province can make decisions jointly (currently the Act provides that the Province is the only decision maker but has been interpreted and applied to align with sections 6 and 7 of the Declaration Act), retain accountability measures like judicial review of decisions, and move towards more respectful partnerships.

Respectfully, the proposed amendments did not adequately align the Act with UNDRIP. Though clear on not incorporating a veto for First Nations, BC specifically left out whether the amendments will require the free, prior and informed consent of impacted Indigenous persons to have complied with the Declaration Act.

The mandate of free, prior and informed consent allows for Indigenous groups to, in accordance with a group’s own legal orders, engage meaningfully and allows those Indigenous legal orders to, alongside international law (UNDRIP) and domestic law (the Declaration Act and Land Act), play a material role in governance. In essence, and in the ever measured and insightful commentary of eminent scholars like John Borrows and Val Napolean, this process can be referred to as the braiding of legal orders. Each strand, domestic law, Indigenous law and international law, can stand alone but each are stronger when weaved together as one.

Respectfully, in our view simply allowing government to enter consent-based decision making agreements with Nations, rather than obligating government to obtain free, prior and informed consent (or at least provide a Nation the opportunity, and funding, to participate in such process), is insufficient for this braiding to occur. UNDRIP also clearly delineates the need for free, prior and informed consent when governments make decisions impacting Indigenous persons.

British Columbia is legally bound to align its laws with UNDRIP. This includes the obligation to obtain free, prior and informed consent of impacted Indigenous persons. Additionally, reconciliation is not satisfied by posturing land acknowledgements or superficial consultation. At its core, Reconciliation demands remedying categorically damaging historical wrongs. It is about establishing and maintaining respectful relationships between Indigenous and non-Indigenous peoples and reconciliation of assumed sovereignty with pre-existing rights and title of Indigenous persons. Indeed, Indigenous persons had little opportunity to consult regarding, let alone consent to, colonization.

In light of applicable provincial law, the vast majority of land in BC is unceded, and the shaky legal foundation upon which the Crown’s title is based (doctrine of discovery, terra nullius and the Royal Proclamation, the validity of which the Supreme Court of Canada has called into question), there is no legal question as to the rights of First Nations to make decisions about projects impacting traditional territories.

It is our hope that the proposed legislation will be re-tabled, be compliant with the Declaration Act and result from deep consultation with Indigenous leadership.

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The content of this blog is legal information only, and does not constitute legal advice.

If you have a legal question or are impacted by the proposed amendments, we would be happy to speak with you.

Please do not hesitate to contact either Katłįà ([email protected]) or James ([email protected]) to discuss.