Recent reactions to proposed changes to B.C.’s Land Act are a threat to reconciliation, Assembly of First Nations B.C. Regional Chief Terry Teegee says.
“This is fear mongering at its worst,” said Teegee.
The province’s NDP government is drafting amendments to enable agreements with Indigenous governing bodies to share decision-making over public land and bring the Land Act in line with the province’s Declaration on the Rights of Indigenous Peoples Act (DRIPA).
DRIPA was passed unanimously in 2019 and establishes the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as B.C.’s framework for reconciliation.
The use of Crown land is governed by the Land Act. Most of B.C.’s First Nations never signed formal treaties with Canada, meaning they never legally handed over land to the Crown. Of the nearly 100 million hectares of land in B.C., about 95 per cent is Crown land, or unceded territory.
B.C. Conservative Party leader John Rustad issued a news release Feb. 1 saying the proposed amendments would bring “sweeping changes.”
“It is an assault on your private property rights and our shared rights to use Crown Land,” said the news release.
B.C. Conservative Party president Aisha Estey told CBC Radio’s The Early Edition Monday that the changes will “repeal business” and section 35 of the Constitution already “facilitates the process that we are supposedly trying to facilitate with these Land Act amendments.”
“We disagree that six per cent of the population should have essentially a veto power over 95 per cent of the land,” said Estey.
The Early Edition14:12Political Panel — Controversy behind proposed changes to B.C.’s Land Act
No veto, say minister and leadership council
The First Nations Leadership Council, which consists of executives from the B.C. Assembly of First Nations, First Nations Summit and the Union of B.C. Indian Chiefs, said in a news release Feb. 1 that it was concerned about “inaccurate and unhelpful” reactions to the proposed changes.
The release said the changes will not give First Nations a veto over the use of lands and will not immediately alter the existing land tenure system.
Teegee said the idea this would allow First Nations a “veto” is false and inflammatory. He said misunderstanding and “fear mongering” have been widespread since the changes were announced.
“I think it’s a threat to reconciliation and really sets us back in terms of relations with not only governments, with the general society,” said Teegee.
Nathan Cullen, B.C. minister of Water, Land and Resource Stewardship, said there is no veto power contained in the proposed amendments.
The amendments to the Land Act haven’t been drafted yet. A bill is expected to be introduced in April.
The current Land Act gives final decision-making powers only to the minister in charge, to issue leases and licences for land use. Cullen said the amendments would bring First Nations into the discussion on land use at the same time as the government and allow provisions in the legislation so they can also sign off on the decision.
Cullen said under the Land Act there are about 40,000 tenures and the government issues about 2,500 a year. These are things like backcountry access permits.
“None of those are impacted by what we’re talking about nor are the renewals of those permits,” said Cullen.
Clifford Atleo, an assistant professor in environmental management at Simon Fraser University who is Nuu-chah-nulth and Tsimshian, said a principle in UNDRIP is the concept of free, prior and informed consent. This has been a subject of debate as to whether it means a veto.
“You get all these assurances from government and other people saying ‘No, that’s not what this is,'” said Atleo.
“If you can’t say no, are you really giving consent if you always have to say yes?”
Atleo said part of reconciliation is for Indigenous people to have real authority over their territories, but when small steps are made in this direction there tends to be a lot of public fear and uncertainty.
Atleo said he feels the legislation won’t be “too radical.”
“Capitalism is not ending tomorrow,” said Atleo.
Different than section 35
The Land Act amendments could lessen litigation over land disputes because they would go further than what is required under section 35 of the Constitution, according to Keith Brown, an associate lawyer with Gowling WLG and a member of the Heiltsuk Nation.
Section 35 affirms the rights of Indigenous peoples, spurring the duty to consult. Under the current Land Act if a decision has the potential to adversely affect the rights of an Indigenous group, the government must consult.
However, the government only needs to consider these consultations and ultimately has the decision-making authority. When an Indigenous group wants to fight these decisions, the dispute will often end up before the courts.
“This joint decision-making process, it’s essentially a higher bar than consultation,” said Brown.
Because the amendments are meant to make the process more predictable, “It also provides more certainty from the perspective of developers or of proponents,” said Brown.
“To me, it should be something that is not at all controversial in the era of rights recognition and implementing the UN Declaration on the Rights of Indigenous Peoples in B.C.”
Written submissions on the Land Act amendments are open online until March 31.