Are First Nation Shared Decision-Making And Collaboration Agreements Being Used Illegally?

• Published date: 10 August 2022
• Subject Matter: Government, Public Sector, Criminal Law, Constitutional & Administrative Law, White Collar Crime, Anti-Corruption & Fraud, Indigenous Peoples
• Law Firm: McMillan LLP
• Author: Mr Robin Junger and Joan Young

Introduction

In recent years the province of British Columbia has increasingly focused on reaching "non-treaty agreements" with Indigenous groups. Unlike treaties, they are not enshrined into law by federal or provincial statute. For example when the Nisga'a treaty was signed, the Legislature passed the Nisga'a Final Agreement Act, S.B.C. 1999, c. 2. Section 3 of that Act states:

3 (1) The Nisg_a'a Final Agreement is approved, given effect, declared valid and has the force of law.

(2) Without limiting subsection (1), a person or body has the powers, rights, privileges and benefits conferred on the person or body by the Nisg_a'a Final Agreement and must perform the duties and is subject to the liabilities imposed on the person or body by the Nisg_a'a Final Agreement...¹

By contrast, when the province signs agreements² that contain shared decision-making or collaboration provisions there is generally no implementing legislation. They are not law. They do not change the law.³

So what do these agreements mean for people or companies that may be affected by them, as in the case for example of applicants for permits under the Mines Act, R.S.B.C. 1996, c. 293, the Forest Act, R.S.B.C. 1996, c. 157and similar statutes?

The practical reality

Applicants are in practice often told (directly or indirectly) by provincial officials that they require approval from both the provincial statutory decision-maker and the First Nation that has one of these agreements. But that is simply wrong in law. Such agreements cannot and do not change the law, and the law is clear that First Nation approval is not required (except in areas of proven Aboriginal title, of which only one area exists in BC). Nothing in provincial law requires it. Nothing in the Crown's duty to consult First Nations requires it. In fact, the Supreme Court of Canada has said numerous times that the duty to consult includes a requirement to discuss and potentially accommodate impacts on the exercise of asserted Aboriginal rights, but it does not provide a veto.⁴

Where it gets more complicated is where the government does not suggest First Nation approval is formally required, but where officials "strongly encourage" the proponent try and reach consensus with Indigenous groups. The effect of this often seriously complicates or delays decision-making processes. It can also result in serious unfairness to applicants.

Administrative law principles and the duty to consult

There may be good reasons for the Crown to enter into agreements with First Nations to give practical structure and effect to the duty to consult. Indeed, the courts have...