Robin Junger on the B.C. NDP's new economy-destroying legislation
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I'm always amazed at how government doesn't consider economic development or doesn't consider the impact of some of their legislation and I've got a beauty right now. I mean you look in British Columbia, look at investment capital per worker, we're about 62%

of what they do in the U.S. Well, there's a new piece of legislation that I want to bring to your attention right now. And sadly, because it should be in your attention, it should be front and center. We're talking about the B.C. government. I'll just say it in a nutshell. It's proposing to give 204 First Nations citizens

sort of co-management of all crown land, all public land. I mean, the implications are huge for a variety of industries, obviously lumber, you'd be talking about mining, but right across the board. And it just hasn't had enough coverage. It's just come to light. Thanks to Vaughn Palmer at the Vancouver sun. And thanks to the work of Macmillan LLP, which specializes in environmental and indigenous law. And I've got Robin Younger on the line with me right now. He's with us. He,

By the way, he was also, Robin was former Deputy Minister of Energy. He's head of the Environmental Assessment Office. He's been a treaty negotiator. And as I say now, lawyer with Macmillan. Robin, first of all, we do appreciate you taking time with us on this, I think, incredibly important subject. So I'm going to start. I just gave a very quick summation there. Can you tell us what this legislation would be all about?

Sure, happy to. I'll have to take a little bit of a step back to explain where it comes from because it all comes from the UN Declaration on the Rights of Indigenous Peoples, which is not a treaty, it's not the law of Canada, it's not international law, but it's an instrument that's out there. And in 2019, British Columbia passed an act called the Declaration on the Rights of Indigenous Peoples Act and says, we want to bring this into the law of British Columbia. And it's not the law of British Columbia, otherwise not the law of Canada, otherwise not.

So under Section 3 of that Act, the province has committed, has obligated itself to take all necessary measures to make BC's laws consistent with the UN Declaration.

That's a big deal. The UN Declaration has provisions that talk about First Nations having the right to own and control the lands that they possess by way of traditional territories. And, you know, everywhere you go, you'll see a land acknowledgement at a school assembly or a local government meeting. I mean, the whole of the province is a traditional territory of some nation, many overlapping.

There's provisions in the UNDRIP about the need to consent for development of a major project. So the province is in the process of reviewing and updating all of its legislation because of Section 3 of this Declaration Act. And what we're seeing now is for the first time, they're making some changes to a particular piece of legislation, the Land Act, that's getting quite a bit of attention.

I wouldn't, I'm not surprised it does when they start talking in terms of you're going to have co-management. I mean, it's tough enough to get anything done in the province as it is, but you're going to get co-management. And there's so many questions that come from me when they say we're going to consult with First Nations as just as

As a layman standing on the outside, I go, well, you're going to talk to the elected bands? Are you going to talk to the hereditary chiefs? We saw that all go through with the coastal gas link. We saw problems with unanimity. I mean, first of all, when we had Kinder Morgan, I mean, so right now the system is that ultimately, before this changes, ultimately is the minister has...

can decide what the public interest is with all sides competing and input from sides. But they're suggesting now that it's going to be co-managed with First Nations, as I say, which begs my questions about who in First Nations? Yeah, it's a good question, Mike, and you covered a lot of ground there. So

I mean, the starting point I should add is that we have a system right now before these legislative changes, before the Declaration Act. It's the duty to consult. It's in section from section 35 of our constitution. We're one of the few countries in the world that has constitutionally protected Aboriginal rights. We're one of the most progressive nations in the world in terms of actually hardwiring the protection of Aboriginal rights into our constitutional law. And that's where all this duty to consult comes from.

What we're talking about here is beyond that. It's not based on the Constitution. It's based on government's decision to implement the UNDRIP through the Declaration Act. This is not required by our Constitution. So what's being contemplated now with respect to the Land Act is a form of, well, not a form, it is joint decision-making or consent-based decision-making because under that BC Act, the Declaration Act,

it says cabinet can authorize ministers to go negotiate agreements with indigenous governing bodies. And when they do, they can provide for joint decision-making or a requirement for consent by the First Nation before the minister can exercise that power. Right now in the Land Act,

It says the minister can issue a tenure for, you know, heli-skiing or a water power project or whatever. If the minister is satisfied, it's in the public interest. The public interest. It actually says that in the Act. So if an Indigenous governing body is also making the same decision or has the ability to consent or not consent to the minister's decision, there's a very live question. Well, will they consider the public interest?

Is the public interest defined the same? Shouldn't they be considering the interests of their community? Isn't that the very purpose of all of this? And to my knowledge, there's no good answers out there to that question yet.

And again, that's a concern because the government has fast tracked this. And, you know, my opinion submissions, as you say, they're already starting on the legislation submissions at the end of March. They're saying they want to pass this by May 16th, something so fundamental. And I can tell you from communications that I've received personally, this is of tremendous concern to industry. Right.

right now. I mean, for example, you know, I'll just throw a couple at you, but petroleum industry is already ranked 15th out of 17 for the least hospitable place to invest. You know, our mining industry is way down the list in British Columbia, again, of jurisdictions welcoming mining, making it hospitable. So I don't see this as anything that creating confusion, at the very least creating a ton of confusion, which will discourage capital investment.

I think it's definitely creating confusion and it's complicated. You know, I think there's a lot of people are saying right now it's going to change everything tomorrow across the province. To be clear, it's not. It's not going to change everything tomorrow across the province. These powers will only exist where the government signs an agreement with one or more Indigenous groups. But, you know, they've already signed a couple with the Taltan. There's a few more under negotiation with the Taltan.

They're also negotiating one in the Seashell area, which has caused considerable controversy. You're probably aware of the document management plan issues up there. And once this legislation passes to the Land Act, the whole purpose of it is to be able to give effect to these agreements under the Declaration Act. So once that legislation is changed, the government can create these new agreements with a stroke of a pen. They don't have to go back to the legislature.

Yeah, we'll sign one with you. We'll negotiate one with you. We'll negotiate one with you. And the government is saying, well, don't worry. You know, we'll consult people on those individual agreements. But, you know, A, that's just the promise. B, there's nothing in the Declaration Act that requires it. All the Declaration Act says is if government's negotiating one of these agreements, they've got to make public who they intend to consult.

It doesn't say they must consult this person, that person, whatever. And if you look at what's happening with the only, you know, active one, that's not just specific to, you know, a mining company or whatever that in Pender Harbor,

The folk are quite upset about saying the consultation has been inadequate. You can find that on the Pender Harbor and Area Residents Association website. They got a button on Section 7 agreement and it's all, it's got their concerns. So I think one doesn't have to assume that it's going to change everything and every square inch tomorrow to still say, wait a minute, this is a really, really important decision for government to make because once that power is changed in the Land Act, it's there.

Well, I'll come back to look at the consultation on this alone. You know, if your company hadn't put a bullet note, if Vaughn Palmer hadn't written about it in the Vancouver Sun, I don't think anybody would have heard of this. You know, I mean, or, you know, maybe that's an extreme nobody would have heard. But I mean, that certainly isn't public consultation. That isn't full, you know, where the potential impact of this change certainly hasn't been met by the level of consultation. So, you know, I choke on that immediately.

Yeah, fair enough. And I mean, I'll try and keep my comments to what the law is. But I mean, I think you aptly noted that the consultation materials on the website said, take your comments till end of March, but legislation is going to start drafting in February. In fairness to the minister, from what I've seen and heard, he has said, look, you know, we probably could have done a better job and we're going to do a better job and we're going to take the time that we need. For me, the consultation process, you know, of course, is important, but

Irrespective of that, you've got these underlying issues. Is it a big issue or isn't it? And I think even if you have a significant consultation, which is probably a good idea, it's still a pretty important issue. Some people are saying it's not an important issue. I respectfully disagree with that.

Well, and again, to me, it invites a more lengthy process, obviously, and that's an issue for anyone. I mean, the thing that I think is underappreciated is we're in a capital investment competition. There are lots of jurisdictions in the world. And as I say, we're already ranking very low down on those things in British Columbia. And so to me, this doesn't...

resolve any of that side of the investment of the business equation. And I guess and maybe if it wasn't such a short timeline, my complaint that I have a lot of questions isn't as pressing, but it is a short timeline. So it's time to have answers to these. You know, that's what you know, I think I shouldn't have that many questions. And I guess I'm going back. I'm influenced, Robin, by

by looking at when they were doing Kinder Morgan, and I think 43 different First Nations signed mutual benefit agreements and eight didn't.

Hence, we had a problem. And as I say, you go up to the coastal gas link, who are we talking to? Hereditary chiefs or elected band bodies? Those are serious issues if things want to go forward. Yeah, you have them now, of course, and then this will introduce another layer. One of my colleagues in a different firm raised the question, could there be 204 of these agreements in relation to

type of land act decision and what about overlapping 10 years because there's lots of places in the province where more than one indigenous group claims it as its traditional territory. I mean, maybe the government wouldn't sign agreements there. I don't know, but there's a lot of questions and you absolutely hit the nail on the head. I mean, we do mostly commercial law. We do work for governments, First Nation too, but

mostly corporate commercial and business law, and I deal with a lot of companies from all over, and you try and explain this to a company that hasn't invested in British Columbia yet, it's difficult for them to get their heads around. You try and explain it to staff at a foreign stock exchange. We deal a lot with companies coming in and asking about this issue and what does it mean for me, or their potential anti-corruption issues.

It gets very complicated, right, because global companies are subject to the UK Bribery Act in many cases, the US Foreign Corrupt Practices Act. And if you're paying benefits to an Indigenous group, it certainly gets more complicated if they're also holding governance authority. I just see, as I say, I...

There's so much more to come on this and so little time, you know, before it's late. You know, we're talking about 94%, what, something, 94, 95% of the BC land that's, you know, public land, that's crown land there.

And as I say, the list of questions, which makes me ask Robin, can I put you on the hook and say, can we visit again? This has more details become available because your group at Macmillan, you at Macmillan have been, you know, the leading edge on this. And of course, with your background as, you know, former deputy minister of energy, head of the environmental assessment office, you've got a unique perspective and an informed perspective on this. So hopefully we can visit again in the near future.

Yeah, you bet, Mike. Thanks for having me. It's much appreciated your time.