British Columbia Land Act amendments could grant Indigenous control over Crown land decisions

British Columbia’s Ministry of Water, Land and Resource Stewardship earlier this month posted on its website a Land Act legislative amendment to consult with Indigenous Governing Bodies to share decision-making about public land use. 

The amendment is in accordance with 2019 Declaration on the Rights of Indigenous Peoples Act (DRIPA), the provincial framework for reconciliation with Indigenous peoples.

It was posted without a media advisory, but Vancouver law firm McMillan published a release commenting on its significance– changes to the way land use decisions are made in the province could have a big impact on the resource sector.  

“Make no mistake – the subject matter of the consultation is unprecedented and of profound importance to any company that requires authorization to use Crown land in BC,” the firm stated in a release published on Friday.  

“These include things like grazing leases, mining leases, licenses of occupation, [and] dock permits.” 

Historically these decisions have  been made by the Minister responsible for the Land Act (or her or his delegates in the senior ranks of the public service), with a corresponding duty to consult affected First Nations, McMillan noted. 

In late 2023, the British Columbia Supreme Court ordered B.C. to update provincial mining legislation to ensure First Nations are consulted before any staking of mineral claims.  The court ruled that the existing online system, which doesn’t include a consultation framework, violates the Crown’s constitutional obligations.

Under the new amendments being proposed, the firm stated, changes will be made to enable agreements with Indigenous groups such that they will be provided a veto power over decision-making about Crown land tenures and / or have joint decision making power with the Minister.  

As such, the Crown alone would no longer have the power to make decisions about Crown land that it considers to be in the public interest.

Public engagement is open until March 31, 2024 here.