January 5, 2024
Photo by CIRA.CA
THE BC LAW INSTITUTE IS CONSIDERING HOW REFORM OF THE LAW ON PUBLIC HEARINGS can be aligned with Indigenous governance.
B.C.’s 2019 enactment of the Declaration on the Rights of Indigenous Peoples Act requires that all Crown legislation be aligned to be consistent with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”).
Toward helping to meet that requirement, the BC Law Institute (“BCLI”) held a “Reconciliation and Community Listening Exploration Series” (a.k.a. “Reconciliation Listening Series”) as part of its Renovate the Public Hearing Project: Pre-Development Public Engagement & Legal Reforms to Support Housing Supply (“RPHP”).
The RPHP aims to recommend ways to reform public engagement on land-use bylaws. The December 2023 Consultation Paper on Renovating the Public Hearing “gives readers information on the current BC law, [UNDRIP], and a range of options for reform.”
UNDRIP, Land Tenure, and First Nations-Local Government Relationships
Chapter 2 of the 115-page consultation paper provides an overview of Indigenous self-detemination and land-based rights and interests, acknowledging that
Most local governments in BC exercise jurisdiction on land that has not been ceded by First Nations to the Crown or Canada. In BC, 95% of the land is unceded territory. That unceded territory is impacted by the jurisdiction and decisions of local governments. Additionally, zoning bylaws can have impacts on neighbouring lands, which may include reserve or treaty lands.
Aligning BC laws with the UN Declaration means shifting from a legal framework based on decision-making authority held exclusively by state governments to shared decision making with First Nations who hold rights and title to the land over which local governments currently make land-use decisions. This is the work of ensuring that laws function in a legally plural context.
The consultation paper uses examples to compare Aboriginal title under Canadian law with inherent Indigenous land rights. For example, citing Sarah Morales and Brian Thom*, the paper distinguishes the legal principle of sharing in a system of controlled and reciprocated access to territories, within the Island Hul’qumi’num system of land tenure, from Crown land-tenure systems. It also summarizes the principle of kinship giving rise to certain rights and obligations, as well as the role of explicit understandings about shared access, observing that such systems and principles were “not accounted for” with colonization, grants of fee-simple lands to settlers, and the allocation of reserve lands to First Nations. It notes the persistence of Indigenous title despite the assertion of Crown title and discusses the need for Indigenous laws and governance systems to inform any new framework for land-use decision-making within BC laws.
The consultation paper discusses experiences that the BCLI heard about from participants in the Reconciliation Listening Series that resulted in “heightened animosity between the general public and First Nations”, such as when a local government blamed a local First Nation for the content of an Official Community Plan that was opposed by members of the public and said its hands were tied.
The consultation paper recounts that Reconciliation Listening Series participants shared that the UNDRIP principle of free, prior, and informed consent (“FPIC”) “is essential to ensuring that First Nations are treated as governments as opposed to the public or an interested stakeholder” and itemizes some best practices that participants shared with BCLI. As well, it summarized legislative amendments identified by participants as necessary “to explicitly address obligations of local governments to co-plan with First Nations within a framework that recognizes Indigenous Peoples inherent rights and title as affirmed in the UN Declaration.”
Indigenous Voices in Public Engagement Processes
Chapter 6 reports what the BCLI heard from Reconciliation Listening Series participants about making public hearings and public engagement inclusive of Indigenous voices (“ensure early and ongoing engagement with First Nations”; “work with First Nations to inform the format of public hearings”; “increase informal opportunities for input”; “employ codes of conduct”; and “include urban Indigenous voices”).
Response Deadline is March 15, 2024
In addition to the BCLI consultation paper, there is plenty of additional material to read and respond to before the March 15, 2024 RPHP deadline:
- Several short backgrounders introducing the RPHP and summarizing the consultation paper can be downloaded on this BCLI web page
- The BCLI has provided a downloadable Response Booklet as one way to comment on public engagement on local land-use bylaws and consultation paper
- The BCLI has also provided a link to an online survey
- Other ways to respond are by fax at (604) 822-0144 or email at email@example.com
An “Innovators Forum Report” from March 2023, as well as a 2022 workshop report, discussion guide, and survey report, is available for download from the SFU Morris J. Wosk Centre for Dialogue.
Also follow the RPHP social media pages:
* Sarah Morales & Brian Thom, “The Principle of Sharing and the Shadow of Canadian Property Law,” in Angela Cameron, Sari Graben, & Val Napoleon, eds, Creating Indigenous Property: Power, Rights, and Relationships (Toronto: University of Toronto Press, 2020) 120 at 134.
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We acknowledge that the land on which we work is the unceded territory of the Coast Salish peoples, including the territories of the xʷməθkwəy̓əm (Musqueam), Skwxwú7mesh (Squamish), and Səl̓ílwətaʔ/Selilwitulh (Tsleil-Waututh) Nations.