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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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7 minute read

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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Business

Ottawa’s avalanche of spending hasn’t helped First Nations

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From the Fraser Institute

By Tom Flanagan

When Justin Trudeau came to power in 2015, he memorably said that the welfare of Indigenous Canadians was his highest priority. He certainly has delivered on his promise, at least in terms of shovelling out money.

During his 10 years in office, budgeted Indigenous spending has approximately tripled, from about $11 billion to almost $33 billion. Prime Minister Trudeau’s instruction to the Department of Justice to negotiate rather than litigate class actions has resulted in paying tens of billions of dollars to Indigenous claimants over alleged wrongs in education and other social services. And his government has settled specific claims—alleged violations of treaty terms or of the Indian Act—at four times the previous rate, resulting in the award of at least an additional $10 billion to First Nations government.

But has this avalanche of money really helped First Nations people living on reserves, who are the poorest segment of Canadian society?

One indicator suggests the answer is yes. The gap between reserves and other communities—as measured by the Community Well-Being Index (CWB), a composite of income, employment, housing and education—fell from 19 to 16 points from 2016 to 2021. But closer analysis shows that the reduction in the gap, although real, cannot be due to the additional spending described above.

The gain in First Nations CWB is due mainly to an increase in the income component of the CWB. But almost all of the federal spending on First Nations, class-action settlements and specific claims do not provide taxable income to First Nations people. Rather, the increase in income documented by the CWB comes from the greatly increased payments legislated by the Liberals in the form of the Canada Child Benefit (CCB). First Nations people have a higher birth rate than other Canadians, so they have more children and receive more (on average) from the Canada Child Benefit. Also, they have lower income on average than other Canadians, so the value of the CCB is higher than comparable non-Indigenous families. The result? A gain in income relative to other Canadians, and thus a narrowing of the CWB gap between First Nations and other communities.

There’s an important lesson here. Tens of billions in additional budgetary spending and legal settlements did not move the needle. What did lead to a measurable improvement was legislation creating financial benefits for all eligible Canadian families with children regardless of race. Racially inspired policies are terrible for many reasons, especially because they rarely achieve their goals in practise. If we want to improve life for First Nations people, we should increase opportunities for Canadians of all racial backgrounds and not enact racially targeted policies.

Moreover, racial policies are also fraught with unintended consequences. In this case, the flood of federal money has made First Nations more dependent rather than less dependent on government. In fact, from 2018 to 2022, “Own Source Revenue” (business earnings plus property taxes and fees) among First Nations bands increased—but not as much as transfers from government. The result? Greater dependency on government transfers.

This finding is not just a statistical oddity. Previous research has shown that First Nations who are relatively less dependent on government transfers tend to achieve higher living standards (again, as measured by the CWB index). Thus, the increase in dependency presided over by the Trudeau government does not augur well for the future.

One qualification: this finding is not as robust as I would like because the number of band governments filing reports on their finances has drastically declined. Of 630 First Nation governments, only 260 filed audited statements for fiscal 2022. All First Nations are theoretically obliged by the First Nations Financial Transparency Act, 2013, to publish such statements, but the Trudeau government announced there would be no penalties for non-compliance, leading to a precipitous decline in reporting.

This is a shame, because First Nations, as they often insist, are governments, not private organizations. And like other governments, they should make their affairs visible to the public. Also, most of their income comes from Canadian taxpayers. Both band members and other Canadians have a right to know how much money they receive, how it’s being spent and whether it’s achieving its intended goals.

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Education

‘Grade inflation’ gives students false sense of their academic abilities

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From the Fraser Institute

By Michael Zwaagstra

The average entrance grade at the University of British Columbia is now 87 per cent, up from 70 per cent only 20 years ago. While this is partly because the supply of available university spots has not kept pace with growing demand, it’s also likely that some B.C. high schools are inflating their students’ grades.

Suppose you’re scheduled for major heart surgery. Shortly before your surgery begins, you check into your surgeon’s background and are pleased to discover your surgeon had a 100 per cent average throughout medical school. But then you learn that every student at the same medical school received 100 per cent in their courses, too. Now you probably don’t feel quite as confident in your surgeon.

This is the ugly reality of “grade inflation” where the achievements of everyone, including the most outstanding students, are thrown into question. Fortunately, grade inflation is (currently) rare in medical schools. But in high schools, it’s a growing problem.

In fact, grade inflation is so prevalent in Ontario high schools that the University of Waterloo’s undergraduate engineering program uses an adjustment factor when evaluating student applications—for example, Waterloo might consider a 95 per cent average from one school the equivalent of an 85 per cent average from another school.

Grade inflation is a problem in other provinces as well. The average entrance grade at the University of British Columbia is now 87 per cent, up from 70 per cent only 20 years ago. While this is partly because the supply of available university spots has not kept pace with growing demand, it’s also likely that some B.C. high schools are inflating their students’ grades.

Sadly, grade inflation is so rampant these days that some school administrators don’t even try to hide it. For example, earlier this year all students at St. Maximilian Kolbe Catholic High School in Aurora, Ontario, received perfect marks on their midterm exams in two biology courses and one business course—not because these students had mastered these subjects but because the York Catholic District School Board had been unable to find a permanent teacher at this school.

The fact that a school board would use grade inflation to compensate for inadequate instruction in high school tells us everything we need to know about the abysmal academic standards in many schools across Canada.

And make no mistake, student academic performance is declining. According to results from the Programme for International Assessment (PISA), math scores across Canada declined from 532 points in 2003 to 497 points in 2022 (PISA equates 20 points to one grade level). In other words, Canadian students are nearly two years behind on their math skills then they were 20 years ago. While their high school marks are going up, their actual performance is going down.

And that’s the rub—far from correcting a problem, grade inflation makes the problem much worse. Students with inflated grades get a false sense of their academic abilities—then experience a rude shock when they discover they aren’t prepared for post-secondary education. (According to research by economists Ross Finnie and Felice Martinello, students with the highest high school averages usually experience the largest drop in grades in university). Consequently, many end up dropping out.

Grade inflation even hurts students who go on to be academically successful because they suffer the indignity of having their legitimate achievements thrown into doubt by the inflated grades of other students. If we want marks to have meaning, we must end the practise of grade inflation. We do our students no favours when we give them marks they don’t really deserve.

Just as our confidence in a surgeon would go down if we found out that every student from the same medical school had a 100 per cent average, so we should also question the value of diplomas from high schools where grade inflation is rampant.

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