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Fraser Institute

Yes, B.C.’s Land Act changes give First Nations veto over use of Crown Land

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From the Fraser Institute

By Bruce Pardy

Nathan Cullen says there’s no veto. Cullen, British Columbia’s Minister of Water, Land, and Resource Stewardship, plans to give First Nations joint decision-making authority over Crown land. His NDP government recently opened consultations on its proposal to amend the B.C. Land Act, under which the minister grants leases, licences, permits, rights-of-way and land sales. The amendments will give legal effect to agreements with Indigenous governing bodies. Those agreements will share decision-making power “through joint or consent models” with some or all of B.C.’s more than 200 First Nations.

Yes, First Nations will have a veto.

Cullen denies it. “There is no veto in these amendments,” he told the Nanaimo News Bulletin last week. He accused critics of fearmongering and misinformation. “My worry is that for some of the political actors here on the right, this is an element of dog-whistle politics.”

But Cullen has a problem. Any activity that requires your consent is an activity over which you have a veto. If a contract requires approval of both parties before something can happen, “no” by one means “no” for both. The same is true in other areas of law such as sexual conduct, which requires consent. If you withhold your consent, you have vetoed the activity. “Joint decision-making,” “consent,” and “veto” come out to the same thing.

Land use decisions are subject to the same logic. The B.C. government will give First Nations joint decision-making power, when and where agreements are entered into. Its own consultation materials say so. This issue has blown up in the media, and the government has hastily amended its consultation webpage to soothe discontent (“The proposed amendments to the Land Act will not lead to broad, sweeping, or automatic changes (or) provide a ‘veto.’”) Nothing to see here folks. But its documentation continues to describe “shared decision-making through joint or consent models.”

These proposals should not surprise anyone. In 2019, the B.C. legislature passed Bill 41, the Declaration of the Rights of Indigenous Peoples Act (DRIPA). It requires the government to take “all measures necessary” to make the laws of British Columbia consistent with the United Nations Declaration on the Rights of Indigenous People (UNDRIP).

UNDRIP is a declaration of the U.N. General Assembly passed in 2007. It says that Indigenous people have “the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired… to own, use, develop and control.”

On its own, UNDRIP is non-binding and unenforceable. But DRIPA seeks to incorporate UNDRIP into B.C. law, obligating the government to achieve its aspirations. Mere consultation with First Nations, which Section 35 of the Constitution requires, won’t cut it under UNDRIP. Under Section 7 of DRIPA, agreements to be made with indigenous groups are to establish joint decision-making or to require consent of the Indigenous group. Either Cullen creates a First Nations veto or falls short of the goalposts in DRIPA. He is talking out of both sides of his mouth.

Some commentators warned against these dangers long ago. For example, shortly after DRIPA was passed in 2019, Vancouver lawyer Robin Junger wrote in the Vancouver Sun, “It will likely be impossible for government to live up to the expectations that Indigenous groups will now reasonably hold, without fundamentally affecting the rights and interests of third parties.” Unfortunately, few wanted to tackle that thorny question head on at the time. All three political parties in B.C. voted in favour of DRIPA, which passed unanimously.

For a taste of how Land Act changes could work, ask some B.C. residents who have private docks. In Pender Harbour, for instance, the shishalh Nation and the province have jointly developed a “Dock Management Plan” to try and impose various new and onerous rules on private property owners (including red “no go” zones and rules that will make many existing docks and boat houses non-compliant). Property owners with long-standing docks in full legal compliance will have no right to negotiate, to be consulted, or to be grandfathered. Land Act amendments may hardwire this plan into B.C. law.

Yet Cullen insists that no veto will exist since aggrieved parties can apply to a court for judicial review. “[An agreement] holds both parties—B.C. and whichever nation we enter into an agreement (with)—to the same standard of judicial review, administrative fairness, all the things that courts protect when someone is going through an application or a tendering process,” he told Business in Vancouver.

This is nonsense on stilts. By that standard, no government official has final authority under any statute. All statutory decisions are potentially subject to judicial review, including decisions of Cullen himself as the minister responsible for the Land Act. He doesn’t have a veto? Of course he does. Moreover, courts on judicial review generally defer to statutory decision-makers. And they don’t change decisions but merely send them back to be made again. The argument that First Nations won’t have a veto because their decisions can be challenged on judicial review is legal jibber jabber.

When the U.N. passed UNDRIP in 2007, people said they can’t be serious. When the B.C. legislature passed DRIPA in 2019, people said they can’t be serious. The B.C. government now proposes to give First Nations a veto over the use of Crown land. Don’t worry, they can’t be serious.

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Alberta

Carney forces Alberta to pay a steep price for the West Coast Pipeline MOU

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From the Fraser Institute

By Kenneth P. Green

The stiffer carbon tax will make Alberta’s oil sector more expensive and thus less competitive at a time when many analysts expect a surge in oil production. The costs of mandated carbon capture will similarly increase costs in the oilsands and make the province less cost competitive.

As we enter the final days of 2025, a “deal” has been struck between Carney government and the Alberta government over the province’s ability to produce and interprovincially transport its massive oil reserves (the world’s 4th-largest). The agreement is a step forward and likely a net positive for Alberta and its citizens. However, it’s not a second- or even third-best option, but rather a fourth-best option.

The agreement is deeply rooted in the development of a particular technology—the Pathways carbon capture, utilization and storage (CCUS) project, in exchange for relief from the counterproductive regulations and rules put in place by the Trudeau government. That relief, however, is attached to a requirement that Alberta commit to significant spending and support for Ottawa’s activist industrial policies. Also, on the critical issue of a new pipeline from Alberta to British Columbia’s coast, there are commitments but nothing approaching a guarantee.

Specifically, the agreement—or Memorandum of Understanding (MOU)—between the two parties gives Alberta exemptions from certain federal environmental laws and offers the prospect of a potential pathway to a new oil pipeline to the B.C. coast. The federal cap on greenhouse gas (GHG) emissions from the oil and gas sector will not be instituted; Alberta will be exempt from the federal “Clean Electricity Regulations”; a path to a million-barrel-per day pipeline to the BC coast for export to Asia will be facilitated and established as a priority of both governments, and the B.C. tanker ban may be adjusted to allow for limited oil transportation. Alberta’s energy sector will also likely gain some relief from the “greenwashing” speech controls emplaced by the Trudeau government.

In exchange, Alberta has agreed to implement a stricter (higher) industrial carbon-pricing regime; contribute to new infrastructure for electricity transmission to both B.C. and Saskatchewan; support through tax measures the building of a massive “sovereign” data centre; significantly increase collaboration and profit-sharing with Alberta’s Indigenous peoples; and support the massive multibillion-dollar Pathways project. Underpinning the entire MOU is an explicit agreement by Alberta with the federal government’s “net-zero 2050” GHG emissions agenda.

The MOU is probably good for Alberta and Canada’s oil industry. However, Alberta’s oil sector will be required to go to significantly greater—and much more expensive—lengths than it has in the past to meet the MOU’s conditions so Ottawa supports a west coast pipeline.

The stiffer carbon tax will make Alberta’s oil sector more expensive and thus less competitive at a time when many analysts expect a surge in oil production. The costs of mandated carbon capture will similarly increase costs in the oilsands and make the province less cost competitive. There’s additional complexity with respect to carbon capture since it’s very feasibility at the scale and time-frame stipulated in the MOU is questionable, as the historical experience with carbon capture, utilization and storage for storing GHG gases sustainably has not been promising.

These additional costs and requirements are why the agreement is the not the best possible solution. The ideal would have been for the federal government to genuinely review existing laws and regulations on a cost-benefit basis to help achieve its goal to become an “energy superpower.” If that had been done, the government would have eliminated a host of Trudeau-era regulations and laws, or at least massively overhauled them.

Instead, the Carney government, and now with the Alberta government, has chosen workarounds and special exemptions to the laws and regulations that still apply to everyone else.

Again, it’s very likely the MOU will benefit Alberta and the rest of the country economically. It’s no panacea, however, and will leave Alberta’s oil sector (and Alberta energy consumers) on the hook to pay more for the right to move its export products across Canada to reach other non-U.S. markets. It also forces Alberta to align itself with Ottawa’s activist industrial policy—picking winning and losing technologies in the oil-production marketplace, and cementing them in place for decades. A very mixed bag indeed.

Kenneth P. Green

Senior Fellow, Fraser Institute
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Energy

Mistakes and misinformation by experts cloud discussions on energy

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From the Fraser Institute

By Jason Clemens and Elmira Aliakbari

The new agreement (MOU) between the Carney and Alberta governments sets the foundation for a pipeline from Alberta to the British Columbia coast, at least conceptually. Unfortunately, many politicians and commentators, including the bureau chiefs for the Globe and Mail and Toronto Starcontinue to get many energy facts wrong, which impairs the discussions of how best the country can and should move forward to capitalize on our natural resources.

For example, commentors often wrongly describe the tanker ban on the west coast (C-48) as a general ban on oil tankers. But in reality, the law only applies to tankers docking at Canadian ports. It does not and cannot prevent tankers from travelling the west coast so long as they’re not stationing at Canadian ports. This explains the continued oil tanker traffic in the northwest region for tankers docking in U.S. ports in Alaska. Simply put, there is not a general tanker ban on the west coast.

Commentators also continue to misrepresent the current capacity on the expanded Trans Mountain pipeline (TMX). According to the Canada Energy Regulator (CER), the average utilization of the TMX since it came online in June 2024 is 82 per cent (reaching as high as 89 per cent in March 2025). So, while there’s some room for additional oil transportation via TMX, it’s nowhere close to the “doubling” being discussed in central Canada. Critically, though, according to the CER, from “June 2024 to June 2025, committed capacity was effectively fully utilized each month, averaging 99% utilization.”

Similarly, there’s a misunderstanding by many in central Canada regarding the potential restart of the Keystone XL pipeline, which apparently President Trump is keen on. Keystone would not diversify Canada’s exports because while oil does make its way down to the southern U.S. where it can be exported, the actual sale of Canadian oil is to U.S. refineries, so our reliance on the U.S. as our near-sole export market would continue unless a west and/or east coast pipeline is developed.

There also continues to be an artificial and costly connection made between Ottawa removing the arbitrary emissions cap on greenhouse gases by the oil and gas sector and the approval of a new pipeline with the proposed Pathways carbon capture project, which is a collaboration between five of Canada’s largest oil producers. This connection was galvanized in the MOU.

The idea behind the project is to reduce (conceptually) the amount of greenhouse gas (GHG) emitted from oil extraction and transportation projects linked with Pathways. The Pathways project produces no economic value or product—it simply collects and stores GHG emissions—and reports suggest the total cost for the first phase of the project will reach $16.5 billion.

Should Canadians care about adding costs related to GHG mitigation? There are several factors to consider. First, Canada is already a low-GHG emitting producer of oil. According to the Carney government’s first budget (page 105, chart 1.5 which ranks the world’s 20 top oil producers based on their GHG emissions per unit of output), Canada already ranks 7th-lowest in terms of emissions. And more importantly, it’s lower than every country—Venezuela, Russia, Iraq and Mexico—that produces a similar type of oil as Canada. Any resources spent further reducing GHG emissions via carbon capture will result in small incremental gains contrasted with large costs (again, at least $16.5 billion). A number of analysts have already raised concerns about the investment and competitiveness implications of increasing the cost structures for Alberta producers.

Second, according to the federal government, in 2022 Canada produced 1.4 per cent of global GHG emissions, and the oil and gas sector produced roughly one-quarter of those emissions. In other words, if Canada eliminated all GHG emissions from the oil sector via carbon capture, the process would consume vast amounts of scarce resources (i.e. money) and result in a nearly undetectable change in global GHG emissions. One can only conclude that this is much more about international virtue-signalling than the actual economics and environmental implications of Canada’s potential energy projects.

At a time when Canada is struggling with crisis levels of private business investmentfalling living standards and as the Bank of Canada described, a break-the-glass crisis in productivity growth, it’s clearly not wise to spend tens of billions of dollars on projects that might make politicians and bureaucrats feel better and enable them to use near Orwellian language like “zero-emissions oil” but that actually deliver almost no detectable environmental benefits.

To borrow our prime minister’s favourite phrase, kickstarting Canada’s oil and gas sector is the easiest way to catalyze economic growth given our vast energy reserves, know-how in the sector, and high productivity. To do so, we need a national dialogue rooted in facts.

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