BC government cancels plan to give First Nations more influence over Crown lands

BC government cancels legislation that would give First Nations more influence over Crown land uses

A portion of the Sea to Sky Gondola attraction falls within provincial Crown lands. (Wonseok Jeong/Shutterstock)

The controversial proposal by the provincial government to make amendments to the Land Act to provide First Nations with more influence over how Crown lands are used has been axed.

In recent weeks, following the start of the formal public consultation process, the proposal has caught many by surprise, with critics accusing the provincial government of rushing the process given the potentially significant implications and impacts it could have on the long-term economic future of British Columbia.

Up until recently, and only after media reports were made well after the start of public consultation, there has been little public awareness over the proposed legislation changes, which aimed to put the provincial government in a position to negotiate agreements with Indigenous governments and begin sharing decision-making on public land use in late Spring 2024.

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However, after weeks of backlash from the public, business community, and opposition political leaders, the provincial government announced today it will be rescinding its proposed legislation to go back to the drawing board and perform significantly more outreach and consultation.

“Throughout these conversations, the vast majority have told us they want reconciliation to work and they want to be partners in this work to create opportunity for First Nations, businesses and all communities through working together. I’ve also heard that we need to take the time to further engage with people and demonstrate the real benefits of shared decision-making in action. We want to get this right and move forward together,” said Nathan Cullen, the BC minister of water, land, and resource stewardship, in a statement.

“For that reason, our government has decided not to proceed with proposed amendments to the Land Act. We will continue to engage with people and businesses, and do the work to show how working together, First Nations and non-First Nations, can help bring stability and predictability, and move us all forward.”

The proposed legislation builds on the foundation of the provincial government’s previous adoption of the principles of the UN Declaration on the Rights of Indigenous People, with reconciliation, the high number of outstanding treaties with First Nations in BC, and legal battles as some of the driving factors.

According to the Vancouver office of McMillan LLP, one of Canada’s largest law firms and a law firm with Indigenous law experience, the Land Act as proposed would provide First Nations with a “veto power over decision-making about Crown land tenures and/or have ‘joint’ decision making power with the Minister.”

Crown lands account for 95% of BC’s entire land area of about 100 million hectares.

Currently, the provincial government is responsible for the Land Act and performs consultation with impacted First Nations.

“These types of decisions are a major part of governing the land base and economy in BC, and these decision-makers are supported by well-drafted and comprehensive Crown Land policies and procedures manuals,” states McMillan.

“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.”

The law firm states, “the consultation is unprecedented and of profound importance” for any company that needs to access Crown lands, including for activities such as grazing leases mining leases, licenses of occupation, dock permits, communications towers, agriculture, waterpower projects, and rights of way.

Critics of the proposal say the Land Act would not only paralyze the economic activity, tourism, and infrastructure projects deemed to be for the public good, but that it is also an affront to democracy. This could also impact the provincial government’s revenues to support healthcare, education, and social services. In a previous statement, BC United party leader Kevin Falcon suggests this proposal would give veto power to a small minority of the province’s population, without broader consideration of the collective good.

“BC United cannot support giving veto power to 5% of the population with impacts to over 95% of Public Land. We must focus on partnerships with First Nations that move us all forward together toward genuine reconciliation, instead of ill-conceived policies that drive us apart,” said Falcon.

Falcon says that if his BC United party forms government, he will formally “rename Crown Land to Public Land to emphasize the crucial relationship between that land and the public interest, from the economy to recreation and much more. We’ll also ensure that all land management decisions are made by representatives elected by the people acting in the public interest.”

There would also be new measures to enhance transparency and accountability in the Land Act decisions, and enforce strict timelines for decisions on how land is used in collaboration with First Nations.

“Decisions about Public Land must be made by elected representatives of all British Columbians,” said Ellis Ross, BC United’s shadow minister for energy and LNG. “BC United stands firmly against this undemocratic plan to cut the public out of Public Land decisions.”

In a new statement today in reaction to the decision to cancel the legislation changes, Falcon suggested the Land Act could re-emerge as a policy if the BC NDP return as the governing party following the 2024 provincial election later this year.

Falcon also highlighted the August 2023 controversy of two First Nations unilaterally making a decision to temporarily close Joffre Lakes Provincial Park for more than a month with less than a day’s notice. After negotiations, the provincial park reopened over the Labour Day long weekend, instead of the First Nations’ original plan for a consecutive closure through National Day for Truth and Reconciliation on September 30.

“Our concerns are especially heightened by this government’s past actions, such as last summer’s closure of Joffre Lakes Park,” continued Falcon.

Cullen and the BC NDP have disputed the assertion that their proposal amounts to providing First Nations with a veto over how Crown lands are used.

“Some figures have gone to extremes to knowingly mislead the public about what the proposed legislation would do. They have sought to divide communities and spread hurt and distrust. They wish to cling to an approach that leads only to the division, court battles and uncertainty that have held us back,” said Cullen in today’s statement.

“In conversations with these groups, many were surprised to learn that the claims being made about the proposed legislation by some were not true and that there would be no impacts to tenures, renewals, private properties or access to Crown land.”

The minister also noted that the decision to reverse course on the proposal follows consultation over the past few weeks with over 650 representatives of stakeholder groups representing sectors such as mining, forestry, oil, gas, clean energy, cattle ranchers, tourism operators, snowmobilers, hunters, anglers, and others.

Reacting to today’s decision, Keerit Jutla, the president and CEO of the Association for Mineral Exploration, says “the way the changes were introduced fostered an environment of distrust and uncertainty. This is not an environment that is conducive to building partnerships and economic reconciliation.”

Jutla adds that any changes to the Land Act must ensure “BC remains a competitive, predictable, and stable environment for mineral exploration.”

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