Implementing UNDRIP: B.C.’s Land Act Reform Sparks Public Debate

The B.C. government is consulting the public on reforms to the Land Act to facilitate shared decision-making under the Declaration on the Rights of Indigenous Peoples Act (DRIPA). The Land Act deals with how public land is used and covers tens of thousands of tenures on public land. Given that public land makes up 95% of British Columbia, it’s no surprise that this consultation process has attracted significant public attention and debate. 

As we approach the five-year anniversary of DRIPA, there are now several examples of mechanisms for shared decision-making with Indigenous governments on land and resource use in B.C. The reforms to the Land Act provide an opportunity to reflect on the approaches taken to date, and to learn from our experiences in B.C. 

BACKGROUND

The B.C. legislature unanimously adopted DRIPA in 2019, which provided a framework to implement the United Nations Declaration on the Rights of Indigenous Peoples over time. For more information, please read our October 2019 Blakes Bulletin: B.C.’s UNDRIP Legislation Facilitates Reconciliation but Leaves Unanswered Questions. 

Among other matters, DRIPA empowers the province to negotiate and enter into agreements with Indigenous governing bodies to provide for joint or consent-based decision-making processes on statutory decisions. Recently, the province commenced an engagement process on potential reforms to the Land Act in order to facilitate decision-making agreements under DRIPA. Interested parties may provide written submissions until March 31, 2024, on the government’s website. 

The proposed reforms to the Land Act have attracted considerable public attention. The province has since acknowledged the changes were not well communicated and is seeking to clarify that the proposed reforms are incremental and will not immediately alter the existing legal framework under the Land Act.  

In practice, the scope of the reforms to the Land Act are not yet understood and depend entirely on the approach to decision-making agreements under DRIPA. If the agreements are narrowly scoped and pursued with a limited number of Indigenous nations, then the changes may well be incremental. If, however, the agreements are broadly scoped and widespread across B.C., then the Land Act reforms will represent a fundamental shift to the existing regime for managing Crown lands in B.C. 

EXAMPLES OF SHARED DECISION MAKING

Many examples of shared decision making with Indigenous governments exist in British Columbia. For example: 

1. Aquaculture in the Broughton Archipelago: In June 2018, the ‘Namgis, Kwikwasut’inuxw Haxwa’mis and Mamalilikulla First Nations and the province signed a letter of understanding, establishing a joint decision-making process regarding salmon aquaculture in the Broughton area.  The signatory First Nations have not consented to the issuance of any provincial tenures for aquaculture in the region, and none have been issued. 
2. Mines in Tahltan Nation territory: Two potential mine projects in Tahltan Nation territory are the subject of DRIPA agreements between the province and the Nation, with a third project currently under negotiation. In each case, the scope of the decision-making is limited to approvals under the Environmental Assessment Act and the corporate owner of the affected project is involved in the process. The review process for each project remains underway.
3. Dock Tenures in Shishalh Nation territory: In August 2022, the province issued an order-in-council authorizing provincial ministers to negotiate a DRIPA agreement with the Shishalh Nation to jointly exercise the province’s power under the Land Act to grant dock tenures in the Nation’s territory, which includes much of the Sunshine Coast. This order was followed by amendments to the dock management plan for the area, expanding the geographic scope of the plan to the entirety of the Nation’s territory. Decision-making in the region is reported to have stalled, with landowners waiting two years or more to transfer an existing dock-tenure upon sale of the associated property.  
4. Land, Water and Resource Stewardship in Blueberry River First Nations Territory: In January 2023, Blueberry River First Nations and the province entered an implementation agreement in response to a June 2021 B.C. Supreme Court decision that found the province had infringed Blueberry River’s Treaty 8 rights due to the cumulative impacts of decades of industrial development. Other First Nations have commenced legal proceedings challenging the agreement based on its impacts on their rights. 
5. Modern Treaties with B.C. First Nations: Modern treaties in British Columbia are tripartite agreements between Canada, the province, and a First Nation. There are four modern treaties in British Columbia with the first being the Nisga’a Final Agreement (effective May 2000) and the most recent being the Tla’amin Final Agreement (effective April 2016). These treaties are comprehensive arrangements that can specify structured, shared decision-making in a range of jurisdictions, from land use tenures to wildlife harvesting to fisheries.

KEY ISSUES TO RESOLVE AS PART OF LAND ACT AMENDMENTS

Several themes emerge from these experiences. 

1. DRIPA is a short statute and has almost no substantive preconditions for the province to enter into negotiations with Indigenous governments regarding shared decision-making. While presumably the province considers the public interest and alignment of values with its potential Indigenous partner before deciding to commence those negotiations, there is no legal requirement to do so, nor any public criteria by which that decision is to be made. For Indigenous counterparts, there are no “readiness criteria” akin to the entry into treaty negotiations. 
2. Decision-making by the province and Indigenous governments is currently left entirely to the negotiated agreement. Governmental accountability and transparency, as a result, depends on the text of each agreement. This could be rectified by prescribing in the Land Act (or through other legislation or policy) the topics that may be addressed in any agreement, such as application criteria, timelines, decision-making mechanisms, transparency requirements, remedies, and so on. 
3. Existing private interests need to be addressed. This has been a key feature of successful treaty negotiations. If there is no effective mechanism by which tenure-holders can transfer or renew their tenures, they will have no certainty and hence one of the objectives of reconciliation will not be met. The concept of “grandfathering” (whereby existing lawful land uses may continue in their current form, while the new legal requirements apply to new uses) is a valuable transition principle that typically governs municipal zoning changes and could be applied here.
4. Similarly, existing Indigenous interests need to be addressed. Much of B.C. has overlapping traditional territories of various First Nations. It is common for projects to earn the consent of some but not all interested Indigenous nations, in which case the government must retain the authority to decide if the project can proceed. As the Blueberry River First Nations’ experience shows, an agreement with one Nation that affects others can lead to litigation rather than certainty. By contrast, where First Nations in a region align themselves into a group, an agreement with that group may well be successful and improve certainty. 

CONCLUSION

The debate and public reaction to the reforms under the Land Act point to the larger question of how the province is approaching shared decision-making in British Columbia, whether under DRIPA or otherwise.

Decision-making agreements involve significant and potentially transformative public policy considerations. Their negotiation is not subject to the same scrutiny as legislative amendments, leaving the public to guess about the implications. The lack of any specific public criteria or policy framework underpinning these agreements risks eroding public confidence in the process and undermining reconciliation efforts.       

The rule of law requires rules, embedded in public laws, that govern both decision makers and those affected by the decisions. Unconstrained discretion can lead to arbitrary outcomes. Reconciliation also requires transparency for Indigenous and non-Indigenous peoples alike, to advance mutual prosperity. By providing structure and clarity for shared decision-making agreements, the province could advance these two important objectives. 

For more information, please contact:

or any other member of our Indigenous group.