Who must UBC consult with regarding Land Use Planning?
the answer via FOIPPA (freedom of information request)
Late last fall I found myself tunnelling into a series of stories about UBC’s relationship with Musqueam. I began the series thinking I would focus on things like Musqueam 101, a collaborative learning project between UBC and Musqueam led by the Museum of Anthropology. Or maybe the amazing and ground breaking Musqueam language program that originated with a group of dedicated linguists. Or even the annual soccer tournament. Unbeknownst to me my series of questions provoked a circling of the wagons response from senior administration. A question asking for a simple statement on the nature of UBC’s relationship with Musqueam received the following reply by email, December 8, 2022:
“given the importance of our relationship with Musqueam, we recognize it’s important that the university discusses any public statement relating to our relationship with them, so we’re currently waiting for their input. We will endeavour to get back to you as soon as possible and are aware of your deadline.”
As I write in August 2023 I am still waiting for an official response to my December 8th, 2022 request. On December 9th, 2022 I learned word had been sent out to funnel requests from Menzies on anything Indigenous up the administrative chain and to “coordinate” information sharing with the senior director of Media Relations.
[Disclosure: I ran for election to the Board of Governors in 2022. The election closed Dec. 8. I was notified of the election results Dec. 9, 2022. My official term began March 1, 2023].
Stories on the relationship
The first story I wrote, UBC’s Relationship with Musqueam, touched on the things that had been done with a turn toward the formal policy side. This was followed by a story about a new agreement UBC and Musqueam were working on. Then followed a story about the Crown’s duty to consult and how, since 2010, in land use matters the BC government had delegated the duty to ’engage’ to UBC via a ministerial order. Around that time I sent a letter to the minister responsible for approving UBC’s land use plan to ask whether or not UBC had to consult with any other First Nations. Her office respond yes, but declined to name the nations. So I submitted a FOIPPA (freedom of information request) to learn who the First Nations were and what evidence the government was using to include them on the list.
The FOIPPA request
Friday, August 18, 2023 I received the FOIPPA response. It is essentially a single page from an email sent to Chris Fay, Director of Strategic Planning UBC in January advising the degree of consultation various First Nations are owed. I had also asked for the strength of claim assessments (the documents the government produces as an assessment of the probability that a particular First Nations has any particular rights and title). The government declined to provide any of these documents citing section 14 of FOIPPA:
“Legal advice: 14 The head of a public body may refuse to disclose to an applicant information that is subject to solicitor client privilege.”
I would note that most of the information in theses documents would very likely already be within the public domain (academic writings, traditional use studies, archival records). Perhaps the government is sensitive about the government author’s editorial comments and evaluations. I’ve seen several such documents in my work with Gitxaała. I can appreciate how the government might feel a certain embarrassment if some of their strength of claim assessments were made more generally public.
Consulting with Squamish Nation
The letter notes that Squamish Nation is to be afforded the same degree of consultative engagement as is Musqueam. To date I have heard no indication of equivalent to Musqueam consultation on land use planning taking place at UBC with Squamish. Also Tseil-Waututh Nation is to be provided ‘normal’ consultation. The government official assumes Chris Fay understood what these differing levels of consultation mean in pragmatic actions. To the rest of us these terms may be a bit opaque.
A 2010 BC document, Updated Procedures for Meeting Legal Obligations When Negotiating First Nations Interim, May 2010, provides some indication of what is expected.
“Deep: Where there is a strong aboriginal rights claim (including title), the potential for negative impacts on the claimed aboriginal right or title and the potential infringement of a proven aboriginal right or title or treaty right is high, and there is a risk of non-compensable damage, the duty is to engage in a deep consultation process. Consultation is aimed at finding a satisfactory interim solution and may require further information. The consultation required here may involve: the opportunity for the First Nation to make submissions for consideration by the Province; First Nation participation in the decision-making process; and, the provision of written reasons to show that First Nations’ concerns respecting their Aboriginal Interests were considered and influenced the decision that is made. In the case of an obvious infringement of proven rights, the question of whether compensation is relevant in the circumstances should also be considered” (page 11'-12).
“Normal: Where there is a likely impact on a reasonable claim or a reasonable probability of an infringement of a proven aboriginal right or title, or treaty right, consultation and accommodation in the normal range will be required. Situations must be approached individually and with flexibility as the level of consultation may change as the process goes on and new information comes to light. The Province must be prepared to make changes, intend to substantially address concerns, and to implement a level of reconciliation between the interests of First Nations and the Crown. Attempts must be made to minimize impacts. If the decision is regulatory in nature, an appropriate priority may need to be accorded to the proven right or treaty right” (page 11).
UBC, through the Campus Vision 2050 process has had a very high level -and very public- engagement with Musqueam Indian Band. UBC reports they have held meetings with Musqueam Chief and Council and community members multiple times during the CampusVision 2050 process. I am not aware of UBC reporting on engagements with other First Nations (though mention is made of specific campus academic units with an Indigenous focus).
Consultation with Squamish Nation is less evident in UBC’s public documents. A request for information was sent to UBC Media Relations, August 18, 2023 asking for clarification on how UBC is meeting it’s obligation for the deepest level of consultation with Squamish Nation in regards to the Land Use Plan. Matthew Ramsey, Director of University Affairs, sent a reply August 22, 2023.1 That portion of which responds to the consultation with Squamish reads as follows:
“Formal consultation was initiated in 2022 with all of the First Nations receiving information several times, with invitations to meet with UBC for deeper discussions. This includes a consultation process with our host nation, Musqueam, and consultation with Squamish through their formal referral process.”
“Formal consultation will continue through to a legislatively required public hearing on the amended Land Use Plan.”
— — — —
UBC states formal consultation was initiated with fifteen First Nations in 2022. The level of consultation with each First Nation required was known to UBC by January 2023. UBC states their “process has included extensive public engagement and consultation with First Nations.” It required a FOIPPA request to get to this point of the story.
For reference, the full statement of August 22, 2023:
“In late 2021, UBC launched the Campus Vision 2050 process to develop a long-term vision for how the Vancouver campus will change and grow over the next 30 years, including the review and update of the UBC Land Use Plan.
The Land Use Plan amendment process reflects UBC’s deep commitment to Indigenous engagement and the advancement of Indigenous peoples’ human rights, reflected in the University’s Indigenous Strategic Plan. The process has included extensive public engagement and consultation with First Nations.
UBC’s consultation process also reflects the levels of engagement with 15 First Nations in accordance with provincial direction from the BC Ministry of Municipal Affairs.
Formal consultation was initiated in 2022 with all of the First Nations receiving information several times, with invitations to meet with UBC for deeper discussions. This includes a consultation process with our host nation, Musqueam, and consultation with Squamish through their formal referral process.
Formal consultation will continue through to a legislatively required public hearing on the amended Land Use Plan.”
Forgive the repetitive nature of my comments here. I appreciate this piece so much, and being welcome to express some thoughts.
There's a poem by Steve Von Till (Poem XII) that I think is relevant here:
It's so damn easy
To justify the horrors done in your name
When your soul has already been conquered
And you identify most
With those who have conquered it
Words don't exist to express my feelings about the culture I'm from, but I can say I am disgusted by, and completely reject its domination of essentially the entire planet, people included. That UBC is constrained to the colonial, capitalist state's dictates as to how to deal with First Nations strikes me as nothing more than an evolved strategy for maintaining existing domination. I think that only appears too dark to the same kind of people who were 'offended' by the report you wrote and mention in the piece you linked about government embarrassment. The same people described in the poem above.
Side note- I applied to a communications job in the President's office recently, representing myself accurately and including some descriptions ongoing about truly engaging with First Nations. I don't think I'll stop applying for these kinds of roles.
Keep going Charles.