Nothing in life is simple. Even more so when it comes to a colonial Crown reconciling its claimed prerogatives with its own legal obligations to the peoples the Crown usurped. I have been publishing stories on how Metro Vancouver and UBC manages their obligations to First Nations’ entities and peoples. These stories have explored UBC cultural protocols around public art installations, UBC’s history of relations with titleholding First Nations, local approaches to ‘Indigenizing’ landscapes, and UBC’s delegated duty to consult with titleholding First Nations in regards to the Land Use Plan.
As part of this series of stories I sent an email to the Honourable Anne Kang, Minister of Municipal Affairs, Honourable Nikki Sharma, Attorney General, and the Honourable David Eby, Premier and Member of the Legislative Assembly for Vancouver-Point Grey on February 28, 2023. Essentially I was seeking clarification on the duty to consult that had been delegated to UBC and an explanation for the inclusion of only one titleholding nation in the required consultation.
My February 28 letter in full:
Dear Ms Kang,
I am writing to inquire into the matter of Land Use Planning at UBC and the Crown’s Duty to Consult with respect to the approval of a UBC Land Use Plan and/or amendment to a plan.
I am a faculty member at UBC, a local resident of the area, and also the publisher of a community newspaper, A Campus Resident.
I understand that currently the Crown has delegated the procedural aspects of its duty to consult to UBC under Ministerial Order: MO 229-2010
The Ministerial Order was imposed on UBC in 2010. In the intervening years there has been changes in BC’s government and provincial legislation related to the legal principals of reconciliation and interpretation of the duty to consult.
I am curious to learn if the government considers Ministerial Order 2010 sufficient to fulfill the Crown’s duty to consult, and/or what additional processes the Crown will engage in to fulfill the duty to consult at the time UBC submits a revised land use plan?
Also, is the Ministerial Order consistent with BC’s plans to implement UNDRIP?
I also note that there is no reference in the Ministerial Order to any other First Nation with overlapping asserted rights and title. Is this because the government considers no other Nation to have sufficient strength of claim to trigger a duty to consult process?
Does the government, through the Minister of Attorney General, have strength of claim reports prepared for Musqueam, Squamish, and Tsleil-Waututh that may have shaped the decision to only include Musqueam in the Ministerial Order? If such documents have been produced, which it would seem they have, can you share them with me?
Thank you for your attention to this matter. I look forward to hearing from you and would be happy to answer any clarifying questions you may have for me.
With warm regards,
Charles
CC: David Eby, MLA for VanPtGrey (my constituency) & Nikki Sharma, Attorney General
On June 2, 2023, I received a letter from Minister Kang’s office (letter dated May 5, 2023). It interestingly notes that the scope of required consultation has been expanded, but the letter writer does not explain the extent or nature of the required expanded duty to consult UBC must undertake for its Land Use Plan. What is clear, is that the Province now says UBC needs to discuss and consult with more First Nations than Musqueam alone.
The letter in full:
May 5, 2023
Ref: 272362
Dear Charles Menzies,
Thank you for your email dated February 28, 2023, to the Honourable Anne Kang, Minister of Municipal Affairs, Honourable Nikki Sharma, Attorney General, and the Honourable David Eby, Premier and Member of the Legislative Assembly for Vancouver-Point Grey with respect to land use planning at the University of British Columbia (UBC) and Crown’s duty to consult delegation to UBC. I am pleased to respond on Minister Kang’s behalf, and I apologize for the delay in my response.
I understand from your email that you are interested in learning more about the Province of British Columbia’s duty to consult with First Nations regarding UBC’s Land Use Plan. As you know, the province has a constitutional duty to consult and, where required, accommodate First Nations whenever it proposes a decision or activity that could adversely affect Indigenous rights and title. The scope of these consultations is based on the strength of claim assessment (SOCA) to Aboriginal Rights and Title.
In 2010, Ministerial Order 229/2010 established the requirement that the UBC Board of Governors must engage with Musqueam First Nations before submitting a new or amended Land Use Plan to the Province. Since 2010, the province has undertaken analysis to assess the strength of claim of several First Nations with respect to the area where UBC is located. As a result of that analysis, the province has expanded the scope of required consultation for the UBC Land Use Plan beyond the requirement set out in Ministerial Order 229/2010. [emphasis added]
This broader consultation process is consistent with the province’s commitment to renew its relationship with Indigenous peoples in British Columbia through the implementation of the Declaration Act and adherence to the Draft Principles that Guide the Province of British Columbia’s Relationship with Indigenous Peoples.
With respect to your request for copies of SOCAs, SOCAs are legal opinions and are therefore privileged. Portions of a SOCA may be disclosed in response to a Freedom of Information (FOI) request. This disclosure occurs following government review and once input from the relevant First Nation is received and considered. FOI requests may be submitted online here: https://www2.gov.bc.ca/gov/content/governments/about-the-bc-government/open-government/open-information/freedom-of-information
The Information Access Operations team can answer your questions about completing a request for records. They can be reached by email at FOI.Requests@gov.bc.ca or by phone at 250-387-1321. Ministry of Municipal Affairs Local Government Policy, Research and Legislation Mailing Address: PO Box 9498 Stn Prov Govt Victoria BC V8W 9T2 Location: 6th Floor, 800 Johnson Street Victoria BC V8W 9T2 http://www.gov.bc.ca/muni
Thank you for writing.
Sincerely,
Kara Woodward
Executive Director
Local Government Policy, Research & Legislation Branch
The letter does not specify which Nations, other than Musqueam, are to be consulted. Nor does it lay out the extent of any such additional consultations. However, the linked ‘draft principles’ provides guidance to help interpret, specifically principles six and seven.
Principle Six: The Province of British Columbia recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior and informed consent when B.C. proposes to take actions which impact them and their rights, including their lands, territories and resources.
Principle Seven: The Province of British Columbia recognizes that respecting and implementing rights is essential and that any infringement of section 35 rights must by law meet a high threshold of justification which includes Indigenous perspectives and satisfies the Crown’s fiduciary obligations.
Existing case law around strength of claim assessments has resulted in a set of measures to assess how much consultation and accommodation is in order. In my earlier story on the 2010 Ministerial Order I explained strength of claims as follows:
“Strength of claim assessments have their roots in a series of court decisions related to the Haida Nation. In Haida Nation, 2004 SCC 73, [2004] 3 SCR 511, the Supreme Court established that the scope of the duty to consult and accommodate is “proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or Title, and to the seriousness of the potentially adverse effect upon the right or Title claimed.””
So there is already circa 2010 a metric for assessing strength of claim and, at that time, only Musqueam met the threshold for detailed inclusion in a consultation process. The broadening of the process likely reflects the province’s intentions of implementing a variant of UNDRIP. We can see this in their reference to “free, prior, and informed consent” in principle six of BC’s draft principles. This is likely what drives a more extensive and detailed duty to consult process today than the Provincial government applied in 2010. I presume it is also what led to their statement that “the province has expanded the scope of required consultation for the UBC Land Use Plan beyond the requirement set out in Ministerial Order 229/2010.”
It remains to be seen what the expanded scope will look like in practical terms. As of date of publication UBC had not responded to a request for clarification of how their First Nations’ consultation process is being amended to accommodate an expanded scope.
Representative Democracy at work. Thanks for another revealing article.
UPDATE: after publication, UBC Media Director, Kurt Heinrich shared the following: "The university is aware of and will follow the consultation and engagement requirements identified by the Province."
Left unstated is the actual "consultation and engagement requirements identified by the Province."