Public access to B.C. Crown lands under threat again

The Eby government is once more pushing Indigenous veto power over Crown lands

By Geoffrey Moyse

As the saying goes, “Fool me once, shame on you. Fool me twice, shame on me.”

Remember the backlash after the B.C. government proposed changes to the Land Act that would have given Indigenous governments veto authority over B.C.’s Crown lands? Those amendments would have allowed Indigenous leaders to block decisions on how public land is used—from logging and mining to recreational access—raising fears of lost public control. The uproar forced the NDP to withdraw the plan before the last election and promise not to revisit it.

Yet here we are again.

Indigenous governments are once more being handed preferential and undemocratic decision-making powers over Crown lands, this time on a sweeping scale. Crown land covers about 94 per cent of British Columbia and is supposed to be managed by the province on behalf of all citizens. Having licked its wounds from the failed Land Act changes, the government is now pursuing two new schemes that still require Indigenous consent.

The first, under the banner of joint Indigenous-Crown land use planning, is poised to expand across much of the province. The second is a pledge that even projects deemed of “provincial significance” under new fast-tracking laws will not proceed on Crown lands without Indigenous approval.

Both initiatives rest on the false premise—driven by the NDP’s embrace of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)—that Indigenous communities have ownership and jurisdictional authority over their entire claimed traditional territories. In 2019, B.C. became the first province in Canada to pass legislation committing to align its laws with UNDRIP, sparking ongoing debate over how far that commitment should reach. But under Canadian law, such sweeping claims have never been recognized.

Article 26 of UNDRIP states: “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Article 32 adds: “States shall consult and cooperate in good faith with the indigenous peoples concerned… in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources.”

Canadian courts, however, have recognized Aboriginal title in only a fraction of B.C., nowhere near the 100 per cent UNDRIP implies. And Canadian constitutional law does not require Indigenous consent for the management of any of British Columbia’s Crown lands.

Despite this, the Eby government continues to acquiesce to unilateral closures of provincial parks and other Crown lands by certain First Nations—actions that are legally unfounded. For many British Columbians, this has meant suddenly losing access to public spaces for hiking, camping or economic activity. Instead of upholding Canadian law and defending the public interest, the government looks the other way.

The result is consent-based land use plans negotiated in secret, with little or no public input. Even if a token consultation process is offered, it’s clear public concerns will be secondary to the demands of Indigenous “partners” whose consent carries decisive weight.

First Nations, important though they are, do not represent the general public. Their responsibility lies with their members, not all British Columbians. Delegating public land decisions to them undermines democratic governance and the principle that public lands must be managed for the benefit of everyone.

British Columbians need to wake up once again. The government is pushing ahead with unlawful, undemocratic, UNDRIP-based schemes to grant Indigenous veto power over public land use across the province. Having seen this before, we should not be fooled again.

Geoffrey S. Moyse is a retired senior lawyer who served as legal counsel to the Province of B.C., advising six successive governments on Aboriginal law over more than 30 years.

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