Two weeks ago the BC NDP quietly launched a public consultation on proposed changes to the Land Act. While I have been publicly critical of the way Minister Nathan Cullen introduced the initiative, I am deeply disappointed by the response of the BC United who decided to re-embrace their former approach that is eerily reminiscent of their decades-old out-of-date policy of denial of First Nations rights and title.
The courts have told us time and again that it is the wrong approach and while it may be politically expedient in an election year to whip voters into a fear-drenched frenzy, it will come at tremendous cost to investment certainty in British Columbia.
BC United leader Kevin Falcon’s recent announcement, chasing BC Conservative leader John Rustad’s announcement, is shrouded in just enough rhetoric to make it sound equitable and appealing, however both political parties are sowing fear and division in British Columbia regarding Crown land and First Nations in the province.
Without legislation on the table to see exactly what the BC NDP are proposing, both Falcon and Rustad have engaged in a race-to-the-bottom by engaging in dangerous dogwhistle politics laced with misinformation, disinformation, and rhetoric. They attempt to re-write history and their process could set Crown-First Nations relations back decades. It will cost all British Columbians legally, and economically.
Last week, I was sharply critical of Minister Cullen (check out Vaughn Palmer’s article here). His public consultation process around proposed Land Act changes captured in Sections 6 & 7 of the Declaration Act created the space for Falcon and Rustad to exploit it for their own political benefit.
Need I remind Falcon that back in Fall 2019, the critics from his party canvassed these exact issues in the Declaration Act for days in committee stage of debate?
Need I remind him that following the debate, the Declaration Act was unanimously passed by the BC NDP, BC Green, BC United and BC Conservative MLAs?
Need I remind Rustad that he spoke in favour of it, and then voted for it?
This is the epitome of gross politics.
Minister Cullen unfortunately opened the door for the competing BC United and BC Conservatives to engage in dredging the depths of the political sludge at the expense of Indigenous people, and frankly, all British Columbians. It cast unnecessary shade over reconciliation and only profits high-priced lawyers who will be only too happy to keep the courts busy for decades to come.
The BC United announcement is based on a faulty premise that is highlighted in this tweet from Michael Lee, MLA for Vancouver-Langara. It’s premised on a consequential lie about the land in British Columbia.
While the words—“committed to reconciliation and true economic partnerships with First Nations,” and “Indigenous Loan Guarantee Program to provide greater access to capital to First Nations to support their equity ownership and participation in natural resource projects,”—may contain ideas with merit, neither will address the historic land question that is at the centre of jurisprudence fifty years in the making. MLA Lee, a lawyer, should know that.
As the Supreme Court of Canada determined in Tsilhqot’in, and the BC Supreme Court decided in Yahey, First Nations people have rights and title on the land base resulting from the legal fact that the land was not legally surrendered or ceded, and that historic treaties have not been honoured. We have inherited this wicked problem and no amount of running in the opposite direction will change that.
The Declaration Act began reconciling this inescapable history through shared decision-making, partnerships, and agreements that Minister Cullen’s contemplated Land Act amendments are supposed to make room for, rather than lengthy and costly court battles.
Don’t forget the judge in the Yahey decision shut down further oil and gas development until an agreement between the provincial government and First Nation was in place. The BC United’s proposal will create incredible uncertainty on the land base for investment decisions.
Has the BC NDP governments path to reconciliation be fraught with challenges? Yes, of course it has. Has it created issues between the province and First Nations? Yes, it has. Has it created problems between First Nations. Yes, it has. Is that reason to abandon it? Absolutely not.
It is clear that the traditional paternalistic decision-making—where the provincial government controls all revenues from the land, and decisions about natural resource extraction—is unacceptable legally and morally. First Nations rights and title will not be legally satisfied by loan guarantees, or easier access to capital that is controlled by the Crown government.
What the BC United proposes is designed to help them dive the bottom with the BC Conservatives, but it puts us further away from the social and economic certainty that is needed for our province to thrive.
I understand we have a long history in British Columbia of not trusting First Nations people with decisions about land and money. It is a particularly ugly and deeply embedded trope in our culture.
The result of restricting First Nations from accessing revenues they are legally entitled to has resulted in decades of legislated abject poverty on Indian Reserves. Which community benefits from the poverty in their First Nations neighbours? None.
Shame on the BC United—keep First Nations people out of your pathetic fight with the BC Conservatives—it is none of our business. First Nations people in British Columbia should not have to pay the price for your inability to get along.
Ultimately, the greatest price will be paid by all British Columbians, as rather than turning and facing our history, we see another example of their elected leaders chosing their own political advantage over their legal and ethical responsibilities.