Facts about the Land Act
Destination BC | Hubert Kang
Insight from the government about what the proposed changes are and aren’t
The provincial government says it wants to make a few small changes to align the Land Act with the Declaration of the Rights of Indigenous Peoples Act. The opposition parties and the media suggest it is quietly changing public access to the land and giving First Nations veto power. For the last two weeks, controversy and confusion reigned.
“Some of [what the opposition and media said] is half truth, some not true, some more opinion,” said Nathan Cullen, the minister of Water, Land and Resource Stewardship. Though he also admits, “We didn’t do this right, and we are trying to restart [the consultation process].”
Cullen made the comments during an hour-plus virtual meeting with members of the Outdoor Recreation Council of BC. It was one of several similar meetings Cullen and his staff hosted with stakeholders to explain the proposed Land Act amendments. They say they are willing to have similar meetings with any interested user group.
A lot of the confusion comes from a misunderstanding of what the Land Act is and isn’t and the reach of the proposed changes, Cullen said. (See below for more on what it “is and isn’t”.)
Let’s start with the Land Act. It is one of the oldest laws in the province and governs use and access of public land. It applies to 25 activities related to industry, recreation and research, including grazing, utilities, clean energy projects, surveys and commercial tourism tenures. There are presently 40,000 Land Act permits. (Though it is important to note a lot of recreation access is actually governed by the Forest and Range Practices Act (FRPA).)
Now on to the changes. In 2019, the opposition parties and the governing NDP unanimously passed the Declaration Act, which created a framework for implementing the United Nations Declaration on the Rights of Indigenous Peoples. Sections 6 and 7 of the Declaration Act set out the process for how the provincial government can enter into agreements with Indigenous Governing Bodies to give them an equal and “judicially reviewable” role in decision-making.
To enable these section 7 agreements, the government has to make small changes to other legislation. It has already amended the acts governing emergency and disaster management, children and family services and forestry to enable the Declaration Act. For instance, Bill 23 amended FRPA to enable the provincial government to enter into a “decision-making agreement” with a First Nation under section 7 of the Declaration Act Forestry Act.
Now the province wants to do the same to the Land Act.
“This is a surgical tool,” said Cullen. “The tools that we are proposing are very, very project specific, site specific, Nation specific. As opposed to a broad sweep affecting all the permits that are going on within the province.”
These are also enabling in nature.
“So as such, there is no impact that is automatic,” he continued. “So there is no change that would result from what's proposed to the ability to access land, relative to what is in place today. No change to existing tenures or existing decision-making processes.”
Section 7 agreements take years to negotiate, are very expensive and exhausting, Cullen said. They will only happen for major projects and only when the provincial government, the impacted First Nation and the proponent of the project are all in alignment. There are only two existing section 7 agreements under the Land Act. Both are related to mines in Tahltan Nation territory and Cullen’s riding, the Red Chris and Eskay Creek projects.
The provincial government is not compelled to enter section 7 agreements with any First Nation or on any project. It will only do so when it is in the public interest, said Lori Halls, Cullen’s deputy minister, who was sitting in on the meeting.
“If there are more than half a dozen section 7 agreements in the next 10 years, I’d be surprised,” said Halls. “That’s how high the bar is.”
The section 7 agreements still go through a stakeholder consultation process and the ministry is going to report how the two existing agreements have impacted recreation.
Finally, Cullen stressed the agreements do not provide First Nations veto.
“The province retains all the authority the province has always had,” he said. “The province will never relegate ourselves to where we can’t say no.”
To find out more about the proposed changes to the Land Act and submit feedback, visit Engage BC. The consultation process is open until March 31.
Changes to the Land Act: what it is and isn’t
A possible reason for the confusion and controversy with the changes to the Land Act is because so much is going on with forest, land and water planning in the province. To clear up some of the confusion, here is a guide to what the proposed amendments will do, according to Minister Nathan Cullen and his team.
Does:
Does relate to access and use of provincial Crown land for industry, recreation and research.
Does enable the Declaration Act, which allows for formal, nation-to-nation agreements between Indigenous Governing Bodies and the provincial government.
Does only apply to major projects and when the interests of First Nation, the provincial government and the public align.
Does not:
Does not automatically apply to the 40,000 existing Land Act permits or their renewal.
Does not apply to the whole province. The changes will be site-specific and only when section 7 agreements are signed.
Does not give First Nations “veto” power over the use of the land or water.
Does not override existing rules for hunting, fishing or access, except possibly in the area governed by the section 7 agreements.
Does not relate to Modernized Land Use Planning. Land use plans are regional planning processes that debate how to use and share the land. The first ones in 20 years are underway right now and feature First Nations and the provincial government as equal partners in the process.
Does not relate to Indigenous Protected and Conserved Areas (IPCAs). Indigenous Protected and Conserved Areas are a newish type of land and water conservation initiative led by First Nations. Several Nations have self-declared IPCAs. There is no statute in provincial law to recognize these areas yet, and the provincial government views them as “the start of a conversation.”
Does not relate to the so-called “30 by 30” commitments. The provincial government has adopted the Global Biodiversity Framework to protect 30 percent of its land and water by 2030. Along with the federal government, the province has committed $1-billion to make it happen, which will include several IPCAs (see above).