Vaughn Palmer: NDP quietly consult on sweeping changes to managing public lands

Opinion: Timeline suggests government has already decided how it will co-manage lands with Indigenous governments

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VICTORIA — The New Democrats have quietly launched public consultation on their plan to begin co-management of government-owned land with B.C.’s 204 First Nations.

“The province wants to know your thoughts on sharing public land-use decision making,” says the call for submissions on the government website. “The government hopes to be able to negotiate agreements with Indigenous governments and begin sharing decision-making on public land use in the late spring of 2024.”

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The overseer Ministry of Water, Land and Resource Stewardship posted the call for submissions at Engage B.C. (engage.gov.bc.ca) earlier this month.

The ministry did not publicize the invitation with a news release, suggesting the government is not all that keen to attract attention to the exercise.

The New Democrats are drafting amendments to the Land Act for introduction this spring. The Act governs access to and use of the 95 per cent of the province that is provincially owned, for purposes as varied as agriculture, communications towers and waterpower.

The changes would allow the minister of lands (currently Nathan Cullen) to enter into agreements with Indigenous governing bodies regarding lands within their traditional territories.

The agreements would be grounded on principles of joint management and consent, as laid out in the UN Declaration on the Rights of Indigenous Peoples and the supporting legislation unanimously enacted by the legislature five years ago.

Other amendments to the Land Act would provide the NDP cabinet “with the ability to establish processes to implement the agreements in a timely and repeatable manner” and “ensure the agreements have force of law.”

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The revised Act would “support predictable and durable land use decisions by providing a mechanism for Indigenous peoples to fully participate in decisions that affect them.”

The implications are far-reaching, as noted in an analysis this week from the Vancouver office of McMillan LLP, a firm specializing in indigenous law. The lead partner on the analysis is Robin Junger, who has worked as a deputy minister of energy, head of the environmental assessment office, and treaty negotiator.

“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,” says a post on the firm’s website.

“These include things like grazing leases, mining leases, licences of occupation, dock permits, rights of way, etc. These types of decisions are a major part of governing the land base and economy of B.C.

“Up until now, these decisions have always been made by the minister responsible for the Land Act (or her or his delegates in the senior ranks of the public service), with a corresponding duty to consult affected First Nations.

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“Under the amendments being proposed by the B.C. 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.

“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 raises some concerns that have not yet been addressed by the province.

• “Will an Indigenous governing body that is making these decisions be able to require / receive financial benefits from the proposed project or development on the Crown land being applied for?

• “Will the same standards of administrative law apply to Indigenous governing bodies, including requirements for independence and impartiality?

• “Will the Indigenous governing body be required to consult itself or other First Nations in respect of potential impacts on its Indigenous rights?

• “Will these new powers apply to renewals or extensions of tenures that may not have been approved by an Indigenous group in first instance?”

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Good questions.

You wouldn’t have imagined those lines of inquiry from the innocuous questions, supplied by the government, “to support you as you gather your thoughts and considerations” before making a written submission.

The government suggestions:

“What opportunities does this provide for Indigenous peoples? For the public? For the economy?

“What will be potential costs to administer negotiated agreements? What steps will be taken to ensure there is accountability, fairness, and transparency in land allocation decisions?

“Will timelines for issuing tenures (on Crown lands) be improved?

The government is accepting written submissions only. Kept to five pages or less. No profanity. No spam. No links to objectionable websites.

E-mail to [email protected] by March 31.

“This information will help ensure the path forward is informed by a range of perspectives and solutions,” says the invitation.

The New Democrats say they will start drafting the amendments to the Lands Act in February. When submissions close almost two months later, there won’t be much time to incorporate any revisions.

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The government intention is to introduce the amendments by the end of April and get them passed before the house adjourns on May 16.

The tight time frame, like the minimal publicity for the consultations, suggests the New Democrats have already made up their minds on how to proceed.

Not likely any public feedback will sway them from their course.

[email protected]

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