A commentary by a lawyer who has advised First Nations, governments, and industry on issues of rights and reconciliation. He was the special counsel on reconciliation to Minister of Justice and Attorney General of Canada, Jody Wilson-Raybould.
Here we go again.
A tiny step (well it’s not actually even a step — more on that later) in implementing the rights of First Nations that were recognized and affirmed in section 35 (1) of the Canadian Constitution almost 40 years ago, has led to public outcry.
And as typical, the discussion of the issue is filled with confusion, misinformation, fear, and in some dark corners a bit of racism.
Over the past few weeks British Columbia has been doing public engagement on amendments to the Land Act, the legislation that governs land tenuring in the province.
Why is it doing this? Well, in 2019 the legislature unanimously enacted the Declaration on the Rights of Indigenous Peoples Act.
The Declaration Act establishes a framework for the implementation of Indigenous rights in B.C. It is a high-level and general act that requires and enables further processes to take place to uphold rights — further legislative change, negotiation of agreements, and an action plan.
In other words, everyone in the legislature, with great fanfare and public support (and a bit of self-congratulation) ushered in and endorsed a law that said the next step is to make more legal and policy changes and enter into agreements.
Of course, the Declaration Act was passed after decades of court decisions that confirmed the existence and strength of First Nations’ title and rights.
Section 7 of the Declaration Act established a process for entering into agreements with First Nations about consent-based decision-making on authorizations (and section 6 for other types of decisions).
The process in the Act is public, transparent, and frankly a bit onerous. It requires a cabinet mandate just to negotiate an agreement, a return to cabinet to approve an agreement, and a whole bunch of public engagement and reporting before and after an agreement is entered into.
As well, as the Liberal opposition made sure to confirm multiple times during committee debate on the Bill, further legislative amendments would be needed to implement agreements.
Well, fast forward five years. Yes, it has been five years. Two agreements have been completed under section 7 — both with the Tahltan Nation. A small handful of others appear to be in negotiation.
To implement those agreements, if they are ever completed, the Land Act (and perhaps other laws) need to be able to respond to the decision-making models in these agreements. That is all these Land Act amendments do.
They create space in the law to implement agreements that may be reached in the future — agreements which are negotiated in accordance with the process and requirements of section 7 of the Declaration Act.
I will say it more simply. The day these Land Act amendments are passed in the legislature, nothing will change about land tenuring in the province. What they will do is create space so that if an agreement is ever completed under section 7, that agreement can be implemented.
Just a reminder: One of the legacies of colonization is that First Nations have been required to jump through endless administrative hoops and obstacles to make any progress in re-building their nations, growing their economies and stewarding lands.
Yes, the Indian Act is a prime culprit in this. But another culprit is provincial laws and policies that stand in the way of fostering new ways of doing things that include First Nations. If we want to truly reconcile we need to remove those obstacles.
Are you still worried? Is the fact that the B.C. government might be doing the tiniest thing that everybody agreed upon and applauded back in 2019 — small changes to laws and policies on the path of implementing the framework in the Declaration Act — really such a cause for concern?
I guess ultimately it’s pretty straightforward.
As Jody Wilson-Raybould, an Indigenous leader and former minister of justice and attorney general of Canada, often says: “If we mean what we say, then we do what we say.”
In 2019, we all said we were going to take this incremental, staged approach to legislative and policy change. B.C. is now doing that (and frankly too slow for my taste).
It is about time these tiny almost-steps are taken. If we say we want to reconcile, and the Declaration Act is our framework for that, then we need to do what we said we were going to do.
And that’s all these amendments are. A tiny bit of follow-though on a path we said we were going down five years ago.
>>> To comment on this article, write a letter to the editor: [email protected]
