B.C. and First Nations have worked together for four years to rewrite the Heritage Conservation Act, which protects more than 64,000 heritage sites, mostly Indigenous.CHAD HIPOLITO/The Canadian Press
The B.C. NDP’s efforts to align the Heritage Conservation Act with its commitments to Indigenous peoples have been met with an outcry from municipal and business leaders who fear it will grind development to a halt.
The “transformation project” is the government’s second attempt in as many years to work jointly with First Nations to change land-use legislation. This is being done to meet the government’s binding commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
The NDP government in struggling to overcome suspicions from other stakeholders that proposed changes will erode the rights of private landowners and tenure holders. This is a particularly sensitive subject in the wake of an explosive court ruling this past summer in which a BC Supreme Court judge found that Aboriginal title is a “prior and senior right to land.”
“There is a high degree of concern with the act as proposed,” said Laura Jones, president and CEO of the Business Council of B.C.
“Right now, there is zero tolerance from the business community for anything that creates uncertainty and there is no question this is creating a lot of uncertainty.”
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But as mayors ask for the legislation to be put on hold, Indigenous leaders say this latest controversy calls into question the government’s commitment to implement the principals of UNDRIP, a commitment that was unanimously made by the legislature in 2019.
“That’s one of the biggest issues, is this unwillingness to implement UNDRIP,” said Judith Sayers, president of the Nuu-Chah-Nulth Tribal Council, who co-chairs the committee that is redrafting the heritage law
For four years, the B.C. government and First Nations have worked together to rewrite the Heritage Conservation Act, which protects more than 64,000 heritage sites across the province – most of which are Indigenous.
The changes are rooted in a long-standing concern from First Nations that their cultural places, such as burial grounds and sacred sites, are poorly protected under the present law.
More recently, the government broadened the scope of the changes to address the existing grievances of those whose developments require compliance with the act. Permit delays, from home renovations to mining operations, can stretch to 900 days.
In a bid to keep the changes on track, Forests Minister Ravi Parmar, who is stickhandling the amendments, recently offered up an extra six weeks for input from stakeholders – local government, business and the public. He still hopes to get changes passed into law by next spring.
In 2019, the B.C. legislature committed to provide a greater influence to First Nations over lawmaking – including resource development. It requires that all provincial legislation be brought into compliance with UNDRIP, but six years later, progress has been slow.
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Some substantive legislation has been passed, including changes to child-welfare legislation, but altering land-use laws in a province where most of the land base is still subject to Aboriginal title claims is proving to be sticky.
The first attempt was proposed changes to the Land Act, which would have allowed joint decision-making with Indigenous communities about developments on public land – which accounts for 94 per cent of the province. The government offered scant public consultation, and then abandoned the amendments last year in the face of a furious backlash.
Mr. Parmar insisted this week that there has been plenty of public consultation this time around. But speaking to municipal leaders on Thursday, he acknowledged that it is “complicated” legislation and he assured them that there is still time to influence the proposed amendments before next spring.
The amendments have yet to be drafted, but the province and First Nations have reached agreement on more than 50 substantive changes, which have been shared as a public engagement document.
The talking points emphasize that the changes will reduce permitting delays for local government, resource companies and private landowners. At the same time, they’ll “recognize First Nations’ right to care for and manage their own cultural heritage,” and “remove barriers for First Nations managing heritage sites on Crown land.”
The amendments would broaden heritage definition to include Indigenous values and intangible heritage − such as songs and ceremonies. These intangibles may be officially recognized, but legal protection will not be automatic.
This week, the Union of B.C. Municipalities gathered for its annual convention, with a long list of issues to debate including housing and public safety. But Trish Mandewo, on her last day as president of the UBCM, focused on the Heritage Conservation Act in her keynote speech. She was harshly critical of the province for failing to consult with local governments that manage the front end of development.
“If you have a plan to how you’re going to fix it, wouldn’t you need to talk to the people that are on the ground that are actually doing some of the work? Because we don’t have any details,” Ms. Mandewo said in an interview.
“What we know is that the legislation will be far-reaching, and that it will impact the work that local government does.”
Ms. Sayers said the proposed changes are not to be feared.
“We do not want this to go the same way as the Land Act, because it’s different. This is heritage, it’s not land and title. It’s just having a say over our heritage, and only on Crown lands,” she said in an interview.
She said the larger question is whether B.C. will live up to its commitments to allow First Nations to influence lawmaking. “I know a lot of people have problems with UNDRIP, but you know, it’s the law now. This is reconciliation.”
The NDP has earned the mistrust of local government, business and private landowners over previous attempts to legislate co-management of land with First Nations because of a lack of transparency. In addition to the backlash over the Land Act, it faces a court challenge to its land-management plan for the Sunshine Coast, which was hidden from the public until after last fall’s provincial election.
Still, there is consensus that the existing heritage law is flawed, and nowhere is that more obvious than in the community of Lytton.
Earlier this month, archeologists finished their work collecting ancient human remains that were uncovered when a wildfire destroyed Lytton more than four years ago. Now, the owner of the property can rebuild – if they still want to. The village was built in the 1800s atop a much older human settlement, and the fire laid bare long-forgotten artifacts.
Lytton Mayor Denise O’Connor said the act, which has not been updated for 30 years, needs to be improved. But despite her interest in the amendments, she has struggled to understand what the proposed changes will look like.
“The intention sounds good,” she said in an interview. “But I am having a hard time grasping what it is. It feels like it is being rushed.”
Robert Phillips, of the First Nations Summit political executive, has been working on the amendments to the Heritage Act for four years. He’s worried that the changes will be derailed because of opposition, but he said there will be other opportunities to advance the principles of UNDRIP.
“This could be a high-level advancement, not a major step forward on title, rights and recognition, but also modernizing the law that could help industry and the like,” he said.