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Comment: Democracy undermined by NDP’s Land Act plans

In a democracy, those affected by collective decisions have the right to participate in making those decisions.
Nathan Cullen, provincial minister of water, land and resource stewardship, speaking at a news conference in Beacon Hill Park in Victoria. ADRIAN LAM, TIMES COLONIST

A commentary by a PhD candidate at Simon Fraser University specializing in democratic theory and Canadian government. She is vice-president of BC United.

Over the weekend, Nathan ­Cullen, provincial minister of water, land and resource stewardship, was forced to defend his government’s troubling proposed amendments to the Land Act.

These amendments will have massive impacts on how the public interest is considered when it comes to outdoor recreation, mining, forestry, agriculture and more.

If the changes to the Land Act are made, the minister insists “the public will be engaged as they are now on decisions on public land.”

The reassurance that public engagement under the amended Land Act will be just “as it is now” is laughable, given the glaring inadequacy of the engagement underway on those very amendments before they’ve even been passed.

Last week it emerged that the government is undertaking a quiet, rushed consultation on the proposed Land Act changes. The timelines of that consultation reveal the process to be a farce: The legislation being “consulted” on will be near-final before the virtually invisible public comment period even ends, and it’ll be brought forward in the final weeks of the legislative session with little time for meaningful debate.

The proposed amendments themselves are even more concerning, especially when considered in relation to fundamental democratic principles.

The NDP government is proposing to enable the minister responsible for the Land Act, who is normally charged with making decisions in the public interest, to enter into consent-based decision-making ­agreements with Indigenous governing bodies who have no such responsibility to consider the broader public interest.

In a democracy, the principle of inclusion demands that those affected by collective decisions have the right to participate in making those decisions.

We generally do this by electing representatives who make decisions on our behalf, and we hold them accountable in subsequent elections, helping ensure they act in our interests.

Through this process, we have a say in the rules we live by, and our many and sometimes competing interests are considered by decision-makers. Not everyone will agree with every decision, but we do get to reward or punish our representatives at the ballot box.

This will not be the case if Indigenous groups are vested with decision-making authority over public land, since more than 95 per cent of British Columbians who are not Indigenous have no role in electing Indigenous governing bodies. In fact, Indigenous people themselves have no ability to select the leaders of the 200-plus Indigenous communities in B.C. other than their own.

When one combines non-Indigenous and Indigenous populations, there is a lack of an accountability relationship between any given Indigenous governing body and about 99.9 per cent of the public.

Moreover, the government’s amendments to the Land Act do not appear to limit the lands to which such agreements could apply. With 95 per cent of B.C.’s land mass claimed as unceded traditional territory by one or more of the province’s many Indigenous groups, this is a recipe for serious uncertainty and strife.

It must be emphasized that Indigenous groups themselves are not responsible for the problems identified here. Their task is to look out for the interests of their own communities, and there’s no reason to believe they wouldn’t continue to do so under the Land Act changes.

In contrast, the provincial government is the only body that is responsible for representing the interests of British Columbians as a whole, and these amendments threaten the ability of this and future governments to do that.

To be clear, meaningfully seeking input from Indigenous groups is entirely consistent with democratic principles (in fact, it’s an integral part of inclusion) and is already required by the courts. However, entering into agreements that give ­Indigenous groups the power to make public land decisions that affect all British Columbians is not.

The legitimacy of our governance system is founded on the democratic principle of popular rule: that “the people” are the authors of the rules that bind them, through an accountability relationship between governors and the governed.

The NDP’s proposed Land Act amendments undermine this simple principle and thus cannot be justified.

At stake is the very foundation of legitimacy for the whole democratic ideal.

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