B.C. Proposed Legislation on Shared Decision Making / Co-management With First Nations
By: Don Wright
B.C. is proposing legislation that would allow the province and First Nations to co-manage crown lands. This has stirred up a lot of controversy and concern, as noted in recent news articles.
In order to understand how this is likely to impact decision making certainty for land-based operations in B.C., it is important to understand the historical context that has led to the proposed legislation, how it will actually work, and how pervasively it will affect government decision making in the foreseeable future.
To anticipate our conclusion, in our opinion this legislation will not lead to a material increase in the uncertainty over what economic activities will and will not be possible on B.C.’s Crown land base. Furthermore, it is unlikely that it will find broad application over that land base in the next decade or so. Finally, we believe that there is an argument that it could result in a reduction in decision-making uncertainty.
Don Wright, Senior Counsel
“We don’t believe that the proposed legislation will have as significant an impact as many of the critics are suggesting. Our advice is to give the province an opportunity to explain what precisely the legislation will do, and, perhaps more importantly, what the legislation will not do.”
The Current Situation
Largely because of court decisions over the last 40 years – e.g. Delgumuuckw, Haida, Tsilhqot’in, Blueberry, and many more – it has become increasingly difficult for the government to approve any activities on Crown land without demonstrating they have worked diligently to consult and accommodate First Nations that have a reasonably strong strength-of-claim in the relevant area. Quite often this means having to consult and accommodate more than one First Nation, as there are significant overlapping claims.
For the most part, government’s approach to consultation and accommodation has tended to be done on a one-off basis – project-by-project and even, in the case of the forest sector, on a cutting-permit-by-cutting-permit basis. This has become hugely expensive, highly duplicative, cumbersome and provides multiple opportunities for any First Nation to either frustrate development or extract major concessions (financial or otherwise). This is the primary reason for the current high degree of uncertainty over what economic projects will be feasible on the Crown land base.
Declaration on the Rights of Indigenous Peoples Act (DRIPA)
In November 2019 the B.C. Legislature approved DRIPA. DRIPA was supported by all Parties in the Legislature as well as most of the major business organizations in the province. Sections 6 and 7 allow for flexibility for the province to enter into agreements with First Nations governments, and to exercise statutory decision-making authority together (“co-management”).
A Section 6/7 agreement regarding Land Act decisions can only be implemented if there is a Cabinet approved mandate under DRIPA, and a successfully negotiated agreement. DRIPA requires an extensive process, with transparency, to bring about any joint decision-making agreement.
Furthermore, all joint decisions made under Section 6/7 agreements will be judicially reviewable, which means the First Nation and government agreements must be administratively fair, transparent, and predictable. Both parties to an agreement (the province and the First Nation(s)) must be prepared to defend their decisions in court. In our opinion, this may limit the number of First Nations that currently will want to pursue the shared decision-making approach – it will require that First Nations have both the capacity and the willingness to have their decisions subject to this review.
The B.C. Government was clear at the time of DRIPA debate in 2019 that there would need to be future changes in other legislation (in this case to the Land Act) in order to align with DRIPA.
The proposed legislation amending the Land Act is strictly enabling and only gets used if there is a Section 6/7 agreement under DRIPA. In other words, this legislation would enable joint decision-making agreements, but it does not make them mandatory.
How Pervasive Across the Province are Joint Decision Making/Co-Management Agreements Likely to Be?
There are a number of significant boxes that will need to be ticked before the provincial government would enter into a joint decision-making agreement. The province will have to be confident that no other First Nation has a reasonably strong strength-of-claim to the same territory, or there would have to be agreement amongst all of the First Nations with reasonably strong strengths-of-claim to cooperate in the co-management agreement. The First Nation(s) would have to agree that the co-management agreement eliminates their ability to challenge any activity that was already within the terms of co-management agreement, that the co-management agreement materially meets the Crown’s obligations, and so on.
What this means is that we do not think most of the province will be subject to shared decision-making agreements in the next 10 years or so. Initially, the areas that might be subject will be those parts where one First Nation has a very strong, undisputed strength-of-claim, or where there is a very strong Tribal Council that unites a number of First Nations with effective governance and decision-making power. In the first category we would put the Tsilhqot’in territory as delineated by the Supreme Court decision, Haida Gwaii, and the Tahltan territory in the northwest. In the second category we would put the Carrier Sekani territory in north central B.C. and the Ktunaxa territory in the southeast. While these are not insignificant portions of British Columbia, the point here is that the majority of the province is unlikely to fall under shared decision-making agreements for quite some time, if ever.
Might There Be Benefits of Shared Decision Making?
Recall what we said above about the current state of seeking consultation and accommodation on proposed economic land-based activity. The hope of shared decision making/co-management is that, rather than doing this on a one-off basis, the government would work with the relevant First Nation to develop a plan for all of that First Nation’s traditional territory – where economic activity of various kinds would be acceptable, what conditions would be attached to it, what areas are “no-go”, and so on. In theory, this would provide greater certainty for private investors, as well as streamline government’s duty to consult and accommodate.
To be successful, of course, this will require both the First Nations and the province have adequate capacity to make this work, as well as understanding, goodwill, and support from non-indigenous stakeholders, most notably the proponents of economic activity. And, it will require the province to be willing to say “no” to a co-management proposal when it concludes that the specific First Nation(s) have (has) not met the conditions warranting a mandate to negotiate. But the benchmark this needs to be compared to is the current reality, not what it might have been if First Nations had not achieved the significant court decisions that they have over the last 40 years.
Regardless of how all of this plays out, the companies who are likely to be most successful are those that have done the hard work of developing strong, mutually beneficial relationships with the First Nation(s) that have strong strength-of-claims in the area which they hope to pursue their investments.
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