B.C. prepares legislation to share decision-making power with Indigenous groups over public lands

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The B.C. government is preparing legislation for this spring to allow the province to share its decision-making powers over public lands with Indigenous groups.

The Land Act governs access and use of public land, which covers 94 per cent of the province, and there are roughly 40,000 active tenures for activities and infrastructure, such as forestry and transmission towers. The proposed amendments will allow for joint statutory authority over new projects that require Crown tenure.

The province has said little publicly about the changes it intends to introduce during the coming legislative session, and only sent out notices to stakeholders in early January.

Because unsettled land claims hang over most of the province, development on Crown land is frequently held up in litigation over Indigenous rights. Nathan Cullen, Minister of Water, Land and Resource Stewardship, said the amendments will provide an option to work jointly with First Nations on approvals for specific projects.

He said the changes are significant but were foreshadowed when the province passed a law in 2019 that aims to achieve reconciliation by providing greater influence to First Nations over lawmaking. The Declaration on the Rights of Indigenous Peoples Act commits the province to seek the “free, prior and informed consent” of affected Indigenous peoples on resource development.

“The notion of co-management is in the DNA of the Declaration Act,” Mr. Cullen said in an interview. “It will lead to greater certainty. It’ll lead to greater harmony, and fewer court cases and fewer protests, be they small infrastructure like a dock, or a large project like a mine.”

He said he does not expect the amendments to the Land Act will apply to existing tenures or renewals, however there is scant detail available. The province has quietly posted a public engagement forum online, which is open for comments until the end of March. However, it intends to have the changes in force by late spring – an unusually short span of time to write and enact legislative changes.

Hugh Braker, a member of the First Nations Summit political executive, said Indigenous leaders involved in the development of the legislative amendments have signed non-disclosure agreements and cannot comment until the process is complete.

“This is a radical change,” said Robin Junger, partner, Indigenous law and environment with McMillan LLP, and a former head of B.C.’s Environmental Assessment Office.

“With these proposed amendments, they are moving to give actual rights of First Nations governance over non-First Nations parties. That’s different than Indigenous self-government and to my knowledge, it’s the first time it has been contemplated anywhere in Canada,” said Mr. Junger.

Phil Braig is general manager of the Douglas Lake Cattle Company, the largest privately held cattle ranch in Canada. The operation relies on more than 410,000 hectares of Crown grazing tenures in the B.C. Interior for several months each year. He only learned of the proposed amendments last week, and said he is worried.

The sprawling cattle operation routinely works with five local First Nations on issues such as water management, but final decisions rest with government. “When government has control, there is a long rule book about making decisions,” Mr. Braig said. “As a citizen, if you want changes, you can vote differently next time around. When you share that decision-making, where is the accountability if I don’t like the way decisions are being made?”

Mr. Cullen acknowledged that the process of shared decision-making can lead to a backlash if it is not handled carefully.

On Friday, the minister issued a joint statement with Chief Lenora Joe of the shíshálh Nation condemning vandalism, death threats and racist statements directed toward the First Nations community on the Sunshine Coast, which they tied to efforts to establish a joint management plan over docks within the nation’s traditional territory.

The shíshálh has spent more than two decades seeking influence over private and commercial docks and boathouses, which fall under the Land Act’s tenure regime. In 2022, the province issued a cabinet order that formalized the joint decision-making process with the First Nation – a precursor to the broader amendments now being proposed.

The plan is still in draft form, but Sean McAllister, director of the Pender Harbour and Area Resident Association, said the hundreds of dock owners in his community have been shut out of the process, and are being told they’ll need to bring their docks into conformity with new rules that they believe are unworkable.

“Until it affects you – when somebody is suggesting they are going to rip your dock out – I think a lot of us Canadians, we’re all in favour of reconciliation,” he said, adding that the province is not being transparent with the public about what shared decision-making means for Crown land.

Mr. Cullen said much of the anxiety is fuelled by a lack of information.

“We admit very much as a province that we are learning how to do co-governance, and doing a better job at informing non-Indigenous people who are impacted. Because ultimately, having good parallel process with a larger community ensures a better agreement and helps us avoid the backlash that can happen.”