B.C.’s Minister of Water, Land and Resource Stewardship Nathan Cullen has accused critics of pending First Nations-related legislation governing about 95 per cent of provincial land of fear-mongering.
Cullen said these critics hope to turn back the clock to 1950s, adding that resource industry leaders themselves are asking for the kind of certainty in resource dealings with First Nations that the legislation is intended to provide.
“My worry is that for some of the political actors here on the right, this is an element of dog-whistle politics,” Cullen said, adding that deliberate misinformation around the issue is hurting B.C.’s reputation.
He made these comments as the provincial government continues to receive submissions on proposed amendments to the Land Act until March 31, while facing criticism for both the substance and the process.
Central to the issue are agreements under Section 6 and 7 of the Declaration on the Rights of Indigenous Peoples Act, which establishes the United Nations Declaration on the Rights of Indigenous Peoples as the basis for reconciliation.
Agreements under those sections allow the provincial government to enter “agreements with a broader range of Indigenous governments and to exercise statutory decision-making authority together” and government is now seeking to bring the Land Act in line.
Critics are accusing the government of not only downplaying the consultation process to avoid attention, but have also raised concerns that government is planning to give First Nations veto power over land decisions.
Perhaps the important document making that point is a commentary from Vancouver-based law firm McMillan LLP.
“(Make) no mistake – the subject matter of the consultation is unprecedented and of profound importance to any company that requires authorization to use Crown land in (B.C.),” it reads. “These include things like grazing leases, mining leases, licenses of occupation, dock permits, rights of way (and so on). “
Up until now, these decisions have always been made by the minister responsible for the act, it reads.
“Under the amendments being proposed by the (provincial) government, changes will be made to enable agreements with Indigenous groups such that they will be provided a veto power over decision-making about Crown land tenures and / or have ‘joint’ decision making power with the (minister),” it reads. “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.”
This commentary has been cited by various critics, but other legal analysts have also pointed out that B.C. is implementing First Nations rights under Canada’s constitution as found in S. 35. .
Cullen, for his part, said critics have it wrong.
“There is no veto in these amendments,” Cullen said. “The First Nation Leadership Council confirmed the same thing.”
Cullen said the government has “reset” the consultation process.
“So we have lengthened it, we have deepened it, we are taking all requests,” he said. “I just did five hours in a meeting with the adventure tourism interests in this province, answering every question they have, and I will do more. I will do as many as it takes.”
Cullen promised his ministry would not start drafting changes until after March 31 and pledged ample for legislators to review the changes.
“It would be surprising if there (are) a lot of amendments, it is not a lot of material,” he said. “But it has obviously elicited a strong response in some quarters, positive and negative, so I’ve got be respectful of the legislature as well.”
Pointing to two current Section 7 agreements with the Tahltan Nation in northwestern B.C., Cullen said these agreements “greatly” enhance the predictability of permits and the ability to raise money, because the fear of litigation or conflict “go way down.”
Cullen said he has spoken to at least one company, who wants to strike an agreement like it now.
“Capital likes to reduce their risk and this dramatically reduces that risk, while at the same time not affecting the existing access to land of all British Columbians,” he said. “It doesn’t affect the 40,000 permits that they we have, it doesn’t affect renewals.”
Cullen also questioned claims that the agreements bypass the legislature.
“If we look at the two examples that we have, the ability to land these agreements requires us to get a mandate from cabinet with an exhaustive consultation process,” he said.
“It requires first of all to have an alignment between the provincial interest, the First Nation, and those cases, the mining company. Then we get a mandate to negotiate, then we do an exhaustive consultation process, then we go back to cabinet to confirm the agreement and the agreement connects the First Nation to the (provincial) government and elevates us both to the same legal standard of judicial oversight and administrative fairness.”
When it was pointed out that cabinet is not the legislature, Cullen said the ability to sign these agreements are part of DRIPA, which “unanimously” passed the legislature before becoming provincial law in November 2019.
“The legislature said, acts of B.C. would have to be changed,” he said. “We have done it five times already. I didn’t hear the outcry when we did this to forestry and child and family and emergency acts.”
