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

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.

Author:

Bruce Pardy

Professor of Law, Queen’s University

Related Topics:#BCCrownLand #BCLandAct #BrucePardy #FraserInstitute

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Published on September 12, 2025

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From the Fraser Institute

By Tegan Hill and Grady Munro

The government is opening the door to cronyism, favouritism and potentially outright corruption

In the midst of budget consultations, the Carney government hopes its upcoming fall budget will provide “certainty” to investors. While Canada desperately needs to attract more investment, the government’s plan thus far may actually make Canada less attractive to investors.

Canada faces serious economic challenges. In recent years, the economy (measured on an inflation-adjusted per-person basis) has grown at its slowest rate since the Great Depression. And living standards have hardly improved over the last decade.

At the heart of this economic stagnation is a collapse in business investment, which is necessary to equip Canadian workers with the tools and technology to produce more and provide higher quality goods and services. Indeed, from 2014 to 2022, inflation-adjusted business investment (excluding residential construction) per worker in Canada declined (on average) by 2.3 per cent annually. For perspective, business investment per worker increased (on average) by 2.8 per cent annually from 2000 to 2014.

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But the upcoming federal budget will likely do the exact opposite.

According to Liberal MPs involved in the budget consultation process, the budget will expand on themes laid out in the recently-passed Building Canada Act (a.k.a. Bill C-5), while also putting new rules into place that signal where the government wants investment to be focused.

This is the wrong approach. Bill C-5 is intended to help improve regulatory certainty by speeding up the approval process for projects that cabinet deems to be in the “national interest” while also allowing cabinet to override existing laws, regulations and guidelines to facilitate such projects. In other words, the legislation gives cabinet the power to pick winners and losers based on vague criteria and priorities rather than reducing the regulatory burden for all businesses.

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Grady Munro

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Equalization program disincentivizes provinces from improving their economies

Published on September 11, 2025

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From the Fraser Institute

By Tegan Hill and Joel Emes

As the Alberta Next Panel continues discussions on how to assert the province’s role in the federation, equalization remains a key issue. Among separatists in the province, a striking 88 per cent support ending equalization despite it being a constitutional requirement. But all Canadians should demand equalization reform. The program conceptually and practically creates real disincentives for economic growth, which is key to improving living standards.

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The goal of equalization is to ensure that each province can deliver reasonably comparable public services at reasonably comparable tax rates. To determine which provinces receive equalization payments, the equalization formula applies a hypothetical national average tax rate to different sources of revenue (e.g. personal income and business income) to calculate how much revenue a province could generate. In theory, provinces that would raise less revenue than the national average (on a per-person basis) receive equalization, while province’s that would raise more than the national average do not. Ottawa collects taxes from Canadians across the country then redistributes money to these “have not” provinces through equalization.

This year, Ontario, Quebec, Manitoba and all of Atlantic Canada will receive a share of the $26.2 billion in equalization spending. Alberta, British Columbia and Saskatchewan—calculated to have a higher-than-average ability to raise revenue—will not receive payments.

Of course, equalization has long been a contentious issue for contributing provinces including Alberta. But the program also causes problems for recipient or “have not” provinces that may fall into a welfare trap. Again, according to the principle of equalization, as a province’s economic fortunes improve and its ability to raise revenues increases, its equalization payments should decline or even end.

Consequently, the program may disincentivize provinces from improving their economies. Take, for example, natural resource development. In addition to applying a hypothetical national average tax rate to different sources of provincial revenue, the equalization formula measures actual real-world natural resource revenues. That means that what any provincial government receives in natural resource revenue (e.g. oil and hydro royalties) directly affects whether or not it will receive equalization—and how much it will receive.

According to a 2020 study, if a province receiving equalization chose to increase its natural resource revenues by 10 per cent, up to 97 per cent of that new revenue could be offset by reductions in equalization.

This has real implications. In 2018, for instance, the Quebec government banned shale gas fracking and tightened rules for oil and gas drilling, despite the existence of up to 36 trillion cubic feet of recoverable natural gas in the Saint Lawrence Valley, with an estimated worth of between $68 billion and $186 billion. Then in 2022, the Quebec government banned new oil and gas development. While many factors likely played into this decision, equalization “claw-backs” create a disincentive for resource development in recipient provinces. At the same time, provinces that generally develop their resources—including Alberta—are effectively punished and do not receive equalization.

The current formula also encourages recipient provinces to raise tax rates. Recall, the formula calculates how much money each province could hypothetically generate if they all applied a national average tax structure. Raising personal or business tax rates would raise the national average used in the formula, that “have not” provinces are topped up to, which can lead to a higher equalization payment. At the same time, higher tax rates can cause a decline in a province’s tax base (i.e. the amount of income subject to taxes) as some taxpayers work or invest less within that jurisdiction, or engage in more tax planning to reduce their tax bills. A lower tax base reduces the amount of revenue that provincial governments can raise, which can again lead to higher equalization payments. This incentive problem is economically damaging for provinces as high tax rates reduce incentives for work, savings, investment and entrepreneurship.

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