Environmental, Indigenous and Natural Resources Blog

Recent online posts have put a spotlight on the Government of British Columbia’s proposed amendments to the Land Act to change how decisions are made to issue surface tenures over public lands. The vast majority of land in B.C. is public land administered under the Land Act. The proposed changes would allow agreements that the B.C. Government enters with Indigenous Governing Bodies (“IGB”s) under Sections 6 and 7 of B.C.’s Declaration on the Rights of Indigenous Peoples Act (“DRIPA”) to enable either joint decision-making or the imposition of a requirement to seek or possibly obtain the IGB’s consent before making surface tenure decisions in the area governed by the agreement. 

There is no draft legislation yet, but the government is inviting comments from the public on the proposal until March 31, 2024, through its public engagement website. Unfortunately, this engagement was not initially announced or broadly publicized, which has contributed to mistrust and eroded public confidence.

The proposed changes to the Land Act could affect a wide range of land use in B.C., given the broad scope of uses of public land administered under the Land Act, including marinas, golf courses, private boat moorage facilities, floating home communities, all-season resort developments (including on aquatic land), sand and gravel pits, quarries involving building and construction materials, surface tenures for oil and gas facilities and well sites, and other surface uses.

Given the potential reach of the changes, this post aims to clear up some of the misunderstandings that have arisen regarding the proposal.

DRIPA was enacted in 2019 to affirm the application of the United Nations Declaration on the Rights of Indigenous Peoples in B.C. We anticipate that the proposed amendments to the Land Act will make use of an existing mechanism in DRIPA that allows the provincial Cabinet to authorize agreements with IGBs relating to: (a) the exercise of a statutory power of decision jointly, and/or (b) the consent of an IGB before the exercise of a statutory power of decision. The DRIPA language is broad enough to include a range of agreements that could allow or require joint decision-making, and that could require IGB consent to be sought or to be obtained.

Though there is no draft legislation available yet for the Land Act changes, it could look similar to Section 7 of the B.C. Environmental Assessment Act (“BCEAA”), which for the last several years has enabled agreements with Indigenous nations for decision-making. Under Section 7 of BCEAA, any “reviewable project” (i.e. reviewable for the purposes of environmental assessment) may not proceed without the consent of an Indigenous nation if the project is either:

1. on treaty lands and the final agreement with the Indigenous nation requires this consent, or
2. in an area covered by a Cabinet-approved agreement with an Indigenous nation that requires the Indigenous nation’s consent.

It is well understood that a final land claim settlement agreement may include provisions that require the consent or approval of the Indigenous nation for activities on their settlement lands, and set out a decision-making process for other areas of land covered by the treaty.

The innovation in BCEAA and DRIPA is the concept that IGB consent may be required under a different type of agreement, in situations where land claims remain unsettled.  

Based on the information provided by the government so far, the amendments to the Land Act will not, on their own, create a requirement to seek or obtain IGB consent, without concluding an agreement between the Government of B.C. and any particular IGB that governs decisions on particular lands. It is possible that the changes would only affect the issuance of new surface tenures, including the terms and conditions of such tenures. Nathan Cullen, the Minister of Water, Land and Resource Stewardship, seems to be indicating that existing Land Act tenures and renewals of existing tenures will not be affected, but that remains to be seen when the draft legislation becomes available.

Regardless, this could have significant ramifications for new Land Act tenures in any areas that will be covered by such agreements.  The provincial Cabinet in power at any given time would have discretion as to the circumstances under which it would be willing to authorize such agreements, and on what terms, and over which areas of land.  In each case, once a DRIPA-Land Act agreement has been concluded, it will become firmly entrenched.

This is not to say that there will be no accountability for consent decisions under DRIPA Agreements. In 2022, B.C.’s Judicial Review Procedure Act (“JRPA”) was amended to make consent decisions under DRIPA Agreements judicially reviewable, meaning that they can be challenged in court.  Under Section 22 of the JRPA, if, prior to the exercise of a statutory power (such as a decision whether to issue a surface tenure under the Land Act), the consent of an IGB is required to be sought or obtained in accordance with an agreement entered into under Section 6 or 7 of DRIPA, then the decision of the IGB as to whether to give consent is judicially reviewable.

Prior to proposing the Land Act amendments, the government had already begun negotiations with one IGB, the Sechelt Indian Band, on the joint exercise of power for leasing or licensing Crown land under Section 11 of the Land Act for private or commercial docks within a certain area. Furthermore, the B.C. Government has already concluded two agreements with an IGB under BCEAA, related to the environmental assessment of certain mining projects, and a third has been authorized for negotiation.

A word of caution must be made against conflating the announced Land Act changes with decisions regarding subsurface rights. In particular, the term “mining leases” has been used in several articles, but this should be understood as a reference to surface tenures under the Land Act for use in certain mining operations. The proposal to amend the Land Act should also not be confused with any efforts to bring the mineral titles regime in B.C. in conformity with the decision of the B.C. Supreme Court last fall in Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680. These are different initiatives. For a discussion of the Gitxaala decision, please see our previous post here.

We will know more once a draft of the Land Act amendments is available, but please contact us if you have questions about how this proposal may affect your plans.