FLETCHER: Land Act sounds like ‘Land Back’ to wary B.C. voters

Tom Fletcher grew up in the Peace River region and has covered B.C. politics and business as a journalist since 1984.

It’s been almost a year since the B.C. NDP government moved to snuff out a growing political brush fire sparked by the latest and largest step in its bid to implement the United Nations Declaration on the Rights of Indigenous People across the province.

Changes to the province’s little-known Land Act were abruptly withdrawn by the government in February 2024 after a series of opposition town hall meetings brought out big crowds demanding answers on the implications. Premier David Eby’s promise of more consultation before moving ahead with what it termed shared decision-making on Crown land meant that if it was successful in the election, the NDP would move ahead.

The brush fire didn’t go out. It kept growing, first consuming the long-standing opposition party that had rebranded from B.C. Liberals to B.C. United, then pushing the upstart B.C. Conservatives to an almost complete sweep of the province’s vast Interior and a near-majority in the October vote.

The political fire was lit by an unlikely source: a client bulletin from Vancouver law firm McMillan LLP that described consultations on the Land Act changes. As McMillan partner Robin Junger explained to Global News last February, the proposed legislation appeared to give indigenous groups “an actual legal veto for decisions under the Land Act” covering all Crown land.

“People talk about Crown land, it’s 95% of the province, but most people never deal with a Crown land tenure; they don’t really know what it means,” Junger said.

“But if you ski in British Columbia, you’re on a Land Act tenure. If you put your boat or your canoe in at a lake or the ocean, you’re probably on a Land Act tenure. If you’re going to a fishing lodge or bear viewing, you’re going to be using a Land Act tenure.”

Since B.C. implemented the UN declaration in 2019, politicians and indigenous leaders have repeated over and over that it does not mean a veto over statutory decisions made by the Crown. I asked B.C. Conservative leader John Rustad what he thinks of that assertion.

“This is a veto,” Rustad told me Jan. 24. “The way the government is working with [B.C.’s version of the UN] legislation, which is one of the reasons why it needs to go, it needs to be replaced, is they are treating consensus as a veto. If a First Nation doesn’t agree, then they go back and continue to negotiate, rather than saying okay, we’ve got to move forward because this is what’s in the best interests of all British Columbians.”

Junger, a specialist in indigenous law, agreed. Canada’s constitution protects indigenous rights, which few countries have done.

“You can’t just make decisions that can affect indigenous groups without consulting them. The Supreme Court has been clear about that,” Junger said. “But the Supreme Court has also been clear that that duty doesn’t give First Nations a veto. It’s said that expressly, many times.”

Rustad said the NDP government’s next move after its sudden retreat raises more concern. It declared aboriginal title exists across Haida Gwaii, formerly the Queen Charlotte Islands. Including private property.

“I don’t have a problem with Haida title, because in my opinion, they were always going to win a title case,” Rustad said. “But title should never exist underneath private land. And it does there. indigenous law will apply to your home, which means the First Nation will make a decision what you can and can’t do on that property. They can make a decision about taxation on the property, and you don’t get a vote.”

It may appear that this situation is unique to B.C., which has more than 200 recognized indigenous communities and no treaties ceding land to the Crown over most of its area. Don’t count on it.

Indigenous rights initiatives tend to start in B.C. and extend across the country. Land acknowledgements started here. Enshrining the UN declaration started here, and Justin Trudeau’s government followed suit, with a yet-undefined law to implement it across the federal government as B.C. has begun to do. 

B.C. is also the focus of anti-industry protests against logging, mining and pipelines on Crown land. Protesters don’t bother with nuanced legal arguments; they paint graffiti and wave signs demanding “Land Back,” ignoring existing treaties.

Do treaties make any difference, such as the historic Treaty 8 in northeastern B.C., the numbered treaties across the prairies or modern land settlements such as Tsawwassen and Nisga’a? 

“It doesn’t really change anything,” said Rustad, who served as indigenous relations minister in the last B.C. Liberal government.

Announcing the NDP government’s retreat last year, former B.C. lands minister Nathan Cullen was dismissive of the uprising against the proposed law. He called it “dog whistle politics” by the opposition to stir up racial prejudice.

It was Cullen who was ultimately dismissed, losing his seat to a B.C. Conservative after representing his northwest B.C. region for the NDP as an MP and then MLA for 20 years.

Tom Fletcher grew up in the Peace River region and has covered B.C. politics and business as a journalist since 1984. tomfletcherbc@gmail.com X: @tomfletcherbc