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Fraser Institute

Yes, B.C.’s Land Act changes give First Nations veto over use of Crown Land

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7 minute read

From the Fraser Institute

By Bruce Pardy

Nathan Cullen says there’s no veto. Cullen, British Columbia’s Minister of Water, Land, and Resource Stewardship, plans to give First Nations joint decision-making authority over Crown land. His NDP government recently opened consultations on its proposal to amend the B.C. Land Act, under which the minister grants leases, licences, permits, rights-of-way and land sales. The amendments will give legal effect to agreements with Indigenous governing bodies. Those agreements will share decision-making power “through joint or consent models” with some or all of B.C.’s more than 200 First Nations.

Yes, First Nations will have a veto.

Cullen denies it. “There is no veto in these amendments,” he told the Nanaimo News Bulletin last week. He accused critics of fearmongering and misinformation. “My worry is that for some of the political actors here on the right, this is an element of dog-whistle politics.”

But Cullen has a problem. Any activity that requires your consent is an activity over which you have a veto. If a contract requires approval of both parties before something can happen, “no” by one means “no” for both. The same is true in other areas of law such as sexual conduct, which requires consent. If you withhold your consent, you have vetoed the activity. “Joint decision-making,” “consent,” and “veto” come out to the same thing.

Land use decisions are subject to the same logic. The B.C. government will give First Nations joint decision-making power, when and where agreements are entered into. Its own consultation materials say so. This issue has blown up in the media, and the government has hastily amended its consultation webpage to soothe discontent (“The proposed amendments to the Land Act will not lead to broad, sweeping, or automatic changes (or) provide a ‘veto.’”) Nothing to see here folks. But its documentation continues to describe “shared decision-making through joint or consent models.”

These proposals should not surprise anyone. In 2019, the B.C. legislature passed Bill 41, the Declaration of the Rights of Indigenous Peoples Act (DRIPA). It requires the government to take “all measures necessary” to make the laws of British Columbia consistent with the United Nations Declaration on the Rights of Indigenous People (UNDRIP).

UNDRIP is a declaration of the U.N. General Assembly passed in 2007. It says that Indigenous people have “the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired… to own, use, develop and control.”

On its own, UNDRIP is non-binding and unenforceable. But DRIPA seeks to incorporate UNDRIP into B.C. law, obligating the government to achieve its aspirations. Mere consultation with First Nations, which Section 35 of the Constitution requires, won’t cut it under UNDRIP. Under Section 7 of DRIPA, agreements to be made with indigenous groups are to establish joint decision-making or to require consent of the Indigenous group. Either Cullen creates a First Nations veto or falls short of the goalposts in DRIPA. He is talking out of both sides of his mouth.

Some commentators warned against these dangers long ago. For example, shortly after DRIPA was passed in 2019, Vancouver lawyer Robin Junger wrote in the Vancouver Sun, “It will likely be impossible for government to live up to the expectations that Indigenous groups will now reasonably hold, without fundamentally affecting the rights and interests of third parties.” Unfortunately, few wanted to tackle that thorny question head on at the time. All three political parties in B.C. voted in favour of DRIPA, which passed unanimously.

For a taste of how Land Act changes could work, ask some B.C. residents who have private docks. In Pender Harbour, for instance, the shishalh Nation and the province have jointly developed a “Dock Management Plan” to try and impose various new and onerous rules on private property owners (including red “no go” zones and rules that will make many existing docks and boat houses non-compliant). Property owners with long-standing docks in full legal compliance will have no right to negotiate, to be consulted, or to be grandfathered. Land Act amendments may hardwire this plan into B.C. law.

Yet Cullen insists that no veto will exist since aggrieved parties can apply to a court for judicial review. “[An agreement] holds both parties—B.C. and whichever nation we enter into an agreement (with)—to the same standard of judicial review, administrative fairness, all the things that courts protect when someone is going through an application or a tendering process,” he told Business in Vancouver.

This is nonsense on stilts. By that standard, no government official has final authority under any statute. All statutory decisions are potentially subject to judicial review, including decisions of Cullen himself as the minister responsible for the Land Act. He doesn’t have a veto? Of course he does. Moreover, courts on judicial review generally defer to statutory decision-makers. And they don’t change decisions but merely send them back to be made again. The argument that First Nations won’t have a veto because their decisions can be challenged on judicial review is legal jibber jabber.

When the U.N. passed UNDRIP in 2007, people said they can’t be serious. When the B.C. legislature passed DRIPA in 2019, people said they can’t be serious. The B.C. government now proposes to give First Nations a veto over the use of Crown land. Don’t worry, they can’t be serious.

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Business

Lower taxes will help increase living standards for Canadian families

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From the Fraser Institute

By Jake Fuss and Grady Munro

According to a new poll from RBC, nearly half (48 per cent) of Canadians can’t maintain their standard of living due to rising costs. These polling results should come as no surprise; recent research has shown that Canadian living standards are in a historic decline.

Governments across the country should take note, and immediately cut the largest expense for families—taxes.

Consider this. Gross domestic product (GDP) is the value of all goods and services produced in the economy, and is the most widely used measure of economic prosperity. And by measuring GDP on a per-person basis (and adjusting for inflation), we can track how living standards of Canadians change over time.

According to the latest data from Statistics Canada, as of September 2024, GDP per person was $58,601 compared to $59,905 in June 2019 (after adjusting for inflation). And since the fourth quarter of 2022, living standards have fallen in seven of the last eight quarters.

The driving factor behind this decline in living standards is Canada’s sluggish economic growth in recent years. Moreover, as highlighted in the poll, inflation over the last several years has left Canadians weary and struggling to cope with the elevated cost of necessities such as food and housing.

Again, if governments want to help improve living standards, they should reduce taxes and leave more money in the pockets of Canadian families.

In 2023 (the latest year of comparable data), the average Canadian family spent a larger share of its income on taxes (43.0 per cent) than on food, shelter and clothing combined (35.6 per cent). In other words, taxes are the largest single expense for Canadian families, and governments have the power to lower this expense to help families make ends meet.

Tax reductions would also benefit the overall economy and increase opportunities for workers. Across a variety of income levels ranging from $50,000 to $300,000 a year, Canadians in nearly every province face a higher combined (federal and provincial/state) personal income tax rate than Americans in virtually every U.S. state.

Of course, jurisdictions compete to attract and retain high-skilled workers such as doctors, engineers and entrepreneurs because these individuals contribute greatly to overall economic growth. By maintaining higher tax rates than U.S. states, provinces remain at a competitive disadvantage in attracting these workers. Lowering both federal and provincial income tax rates would improve Canada’s competitiveness and help increase economic growth.

A stagnant economy and rising cost of living are reducing living standards while stretching the finances of Canadian families. This budget season, governments from coast to coast should lower taxes to improve the economy and put more money back in the pockets of hard-working Canadians.

Jake Fuss

Director, Fiscal Studies, Fraser Institute

Grady Munro

Policy Analyst, Fraser Institute
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Energy

Canada must build 840 solar-power stations or 16 nuclear power plants to meet Ottawa’s 2050 emission-reduction target

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From the Fraser Institute

By Kenneth P. Green

The federal government’s plan to eliminate greenhouse gas (GHG) emissions from electricity generation by 2050 is impossible in practical terms, finds a new study published today by the Fraser Institute, an independent, non-partisan Canadian public policy think-tank.

Due to population growth, economic growth and the transition to electrified transportation, electricity demand in Canada will increase substantially in coming years. “To meet existing and future electricity demand with low-emitting or zero-emitting sources within the government’s timeline, Canada would need to rapidly build infrastructure on a scale never before seen in the country’s history,” said Kenneth P.
Green, senior fellow at the Fraser Institute and author of Rapid Decarbonization of Electricity and Future Supply Constraints.

For example, to generate the electricity needed through 2050 solely with solar power, we’d need to build 840 solar-power generation stations the size of Alberta’s Travers Solar Project. At a construction time of two years per project, this would take 1,680 construction years to accomplish.

If we relied solely on wind power, Canada would need to build 574 wind-power installations the size of Quebec’s Seigneurie de Beaupre wind-power station. At a construction time of two years per project, this would take 1,150 construction years to accomplish.

If we relied solely on hydropower, we’d need to build 134 hydro-power facilities the size of the Site C power station in British Columbia. At a construction time of seven years per project, this would take 938 construction years to accomplish.

If we relied solely on nuclear power, we’d need to construct 16 new nuclear plants the size of Ontario’s Bruce Nuclear Generating Station. At a construction time of seven years per project, this would take 112 construction years to accomplish.

Currently, the process of planning and constructing electricity-generation facilities in Canada is often marked by delays and significant cost overruns. For B.C.’s Site C project, it took approximately 43 years from the initial planning studies in 1971 to environmental certification in 2014, with project completion expected in 2025 at a cost of $16 billion.

“When Canadians assess the viability of the federal government’s emission-reduction timelines, they should understand the practical reality of electricity generation in Canada,” Green said.

Decarbonizing Canada’s Electricity Generation: Rapid Decarbonization of Electricity and Future Supply Constraints

  • Canada’s Clean Electricity Regulations (Canada, 2024a) require all provinces to fully “decarbonize” their electricity generation as part of the federal government’s broader “Net-Zero 2050” greenhouse gas emissions mitigation plan.
  • Canada’s electricity demands are expected to grow in line with the country’s population, economic growth, and the transition to electrified transportation. Projections from the Canada Energy Regulator, Canadian Climate Institute, and Department of Finance estimate the need for an additional 684 TWh of generation capacity by 2050.
  • If Canada were to meet this demand solely with wind power, it would require the construction of approximately 575 wind-power installations, each the size of Quebec’s Seigneurie de Beaupré Wind Farm, over 25 years. However, with a construction timeline of two years per project, this would equate to 1,150 construction years. Meeting future Canadian electricity demand using only wind power would also require over one million hectares of land—an area nearly 14.5 times the size of the municipality of Calgary.
  • If Canada were to rely entirely on hydropower, it would need to construct 134 facilities similar in size to the Site C power station in British Columbia. Meeting all future demand with hydropower would occupy approximately 54,988 hectares of land—roughly 1.5 times the area of the municipality of Montreal.
  • If Canada were to meet its future demand exclusively with nuclear power, it would need to construct 16 additional nuclear plants, each equivalent to Ontario’s Bruce Nuclear Generating Station.
  • Meeting the predicted future electricity demand with these low/no CO2 sources will be a daunting challenge and is likely impossible within the 2050 timeframe.

Read the full study

Kenneth P. Green

Senior Fellow, Fraser Institute
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