A commentary by a Vancouver lawyer who was the Attorney General of British Columbia and Minister Responsible for Treaty Negotiations from 2001 to 2005.
There has been considerable discussion about a B.C. government proposal to advance the project of Indigenous reconciliation by amending the Land Act.
Putting to one side the question whether the government has done a good job of introducing the topic, what about the proposal itself?
I will say at the outset that it is a welcome initiative, but to explain the point some context is required.
Nearly all land and resource decisions on Crown land in British Columbia are subject to an obligation to consult with potentially affected First Nations. This obligation was established by a Supreme Court of Canada decision almost 20 years ago in a case involving the Haida.
It’s a constitutional obligation. Government has no power to avoid it. And it is very fact and site specific, so while the broad principles of the obligation are clear, their application to individual situations is rarely clear.
The result is that while it is technically correct that the minister responsible for the Land Act is the final decision-maker on all Land Act licence and tenure decisions, that decision-making authority in practice is seriously constrained by the Haida obligations.
If the minister doesn’t properly consult or accommodate, the minister’s decision to grant or issue or renew a licence or permit will be set aside by the court — and there are dozens and dozens of examples of such court decisions.
The effect of Haida is to create outcome uncertainty for land and resource development because of the risk that any decision to grant a licence or tenure may be challenged because of inadequate consultation or accommodation.
In my view this uncertainty is unhealthy, both socially and economically. To sidestep this uncertainty, land and resource companies will often try to negotiate agreements with First Nations. Sometimes these are mutually beneficial arrangements, sometimes they’re just a price paid for Indigenous consent to avoid the risk of a court challenge.
Is there a better way? Yes. Read on.
In 2019 the B.C. Legislature enacted the Declaration on the Rights of Indigenous Peoples Act. The main aims of this act were to affirm the application of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) to the laws of British Columbia and to create a framework for its implementation.
The act passed unanimously and was widely celebrated as holding out the potential for meaningful reconciliation in B.C.
The Declaration Act gives the government the power to enter into agreements with First Nations that would limit the statutory decision-making power of cabinet ministers by requiring them either to exercise that power jointly with a First Nation, and/or to obtain the consent of the First Nation before exercising that decision-making power.
But the act does not give legal effect to the decision-making powers in such agreements. That can only happen with specific legislation.
An example of the kind of legislation that is required is found in the Environmental Assessment Act.
A section of that act authorizes shared decision-making in cases where there is an agreement with a First Nation. The best-known example of this kind of agreement was entered into with the Tahltan and it relates to mining.
Again, it was widely celebrated as an example of reconciliation in action. There are other similar provisions in other legislation.
The current proposal is to empower the minister responsible for the Land Act to enter into shared decision-making agreements.
This is, of course, exactly what was contemplated by the Declaration Act in 2019.
The provisions of any shared decision-making agreement will be particularly important for anyone who has rights that may be affected by it.
People who hold rights now under tenures granted by the Crown will rightly be concerned at the prospect of changes to those tenures. Reconciliation will not be advanced if the result of shared decision-making is to strip tenure holders of long-held rights.
But there may also be considerable advantages in such agreements, and not least because they will include First Nations in decisions about the use of land they claim as theirs.
In the first place any decisions made under such agreements will be subject to judicial review to the same extent that they are now.
Fairness will be legally required and First Nations will have to accept that requirement as a condition of entering into any shared decision-making agreement.
Moreover, the law requires the government to consult before entering into such agreements, to make the fact of consultation public and to make the agreement itself public. No behind-closed door deals, no non-disclosure provisions.
An additional significant advantage is the possibility of agreed-upon timelines for decisions.
Today most land-related decisions are not subject to any timeline. Government can take all the time it wants, and quite often takes a very long time, because it must satisfy the duty of consultation I mentioned at the outset.
I would hope that any agreements entered into under the new Land Act provisions would include clear timelines and other matters. But the decision to give the minister responsible for the Lands Act the power to enter into such agreements should not, in my view, be controversial.
To make the point clear, because there are people suggesting otherwise, nothing in the legislative proposals will change anything on the ground anywhere.
Change will only happen when government and First Nations negotiate agreements. The experience since the Declaration Act was enacted in 2019 is good evidence that this will be a long, painstaking and careful process. Government cannot unilaterally legislate shared-decision making.
It only happens when government and a First Nation agree to take that step together.
Of course, there are those who disagree with UNDRIP and who opposed the passage of the Declaration Act. I would expect them to be opposed to this legislative initiative.
They wish that section 35 of the Constitution Act, 1982 – which recognizes and affirms aboriginal and treaty rights - were not part of the constitution of Canada, and that section 91(24) of the Constitution Act 1867 – which creates special constitutional status for “Indians and lands reserved for the Indians” could be repealed, and that the Haida case were not the law of Canada.
They wish that the Supreme Court of Canada decisions which raise the possibility that substantially all the Crown land in British Columbia is subject to aboriginal title were not the law.
They wish, in effect, that reconciliation was just a bunch of nice words, like the land acknowledgements you hear at public events.
But for my part, the Declaration Act was a good step towards meaningful reconciliation, and the idea that the uncertainty of today’s land and resource decision-making could be replaced by fair, principled, transparent and accountable shared decision-making agreements represents a significant step forward both socially and economically.
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