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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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Economy

Prime minister’s misleading capital gains video misses the point

Published on

From the Fraser Institute

By Jake Fuss and Alex Whalen

According to a 2021 study published by the Fraser Institute, 38.4 per cent of those who paid capital gains taxes in Canada earned less than $100,000 per year, and 18.3 per cent earned less than $50,000. Yet in his video, Prime Minister Trudeau claims that his capital gains tax hike will affect only the richest “0.13 per cent of Canadians”

This week, Prime Minister Trudeau released a video about his government’s decision to increase capital gains taxes. Unfortunately, he made several misleading claims while failing to acknowledge the harmful effects this tax increase will have on a broad swath of Canadians.

Right now, individuals and businesses who sell capital assets pay taxes on 50 per cent of the gain (based on their full marginal rate). Beginning on June 25, however, the Trudeau government will increase that share to 66.7 per cent for capital gains above $250,000. People with gains above that amount will again pay their full marginal rate, but now on two-thirds of the gain.

In the video, which you can view online, the prime minister claims that this tax increase will affect only the “very richest” people in Canada and will generate significant new revenue—$20 billion, according to him—to pay for social programs. But economic research and data on capital gains taxes reveal a different picture.

For starters, it simply isn’t true that capital gains taxes only affect the wealthy. Many Canadians who incur capital gains taxes, such as small business owners, may only do so once in their lifetimes.

For example, a plumber who makes $90,000 annually may choose to sell his business for $500,000 at retirement. In that year, the plumber’s income is exaggerated because it includes the capital gain rather than only his normal income. In fact, according to a 2021 study published by the Fraser Institute, 38.4 per cent of those who paid capital gains taxes in Canada earned less than $100,000 per year, and 18.3 per cent earned less than $50,000. Yet in his video, Prime Minister Trudeau claims that his capital gains tax hike will affect only the richest “0.13 per cent of Canadians” with an “average income of $1.4 million a year.”

But this is a misleading statement. Why? Because it creates a distorted view of who will pay these capital gains taxes. Many Canadians with modest annual incomes own businesses, second homes or stocks and could end up paying these higher taxes following a onetime sale where the appreciation of their asset equals at least $250,000.

Moreover, economic research finds that capital taxes remain among the most economically damaging forms of taxation precisely because they reduce the incentive to innovate and invest. By increasing them the government will deter investment in Canada and chase away capital at a time when we badly need it. Business investment, which is crucial to boost living standards and incomes for Canadians, is collapsing in Canada. This tax hike will make a bad economic situation worse.

Finally, as noted, in the video the prime minister claims that this tax increase will generate “almost $20 billion in new revenue.” But investors do not incur capital gains taxes until they sell an asset and realize a gain. A higher capital gains tax rate gives them an incentive to hold onto their investments, perhaps until the rate is reduced after a change in government. According to economists, this “lock-in” effect can stifle economic activity. The Trudeau government likely bases its “$20 billion” number on an assumption that investors will sell their assets sooner rather than later—perhaps before June 25, to take advantage of the old inclusion rate before it disappears (although because the government has not revealed exactly how the new rate will apply that seems less likely). Of course, if revenue from the tax hike does turn out to be less than anticipated, the government will incur larger budget deficits than planned and plunge us further into debt.

Contrary to Prime Minister Trudeau’s claims, raising capital gains taxes will not improve fairness. It’s bad for investment, the economy and the living standards of Canadians.

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Business

Ottawa should end war on plastics for sake of the environment

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From the Fraser Institute

By Kenneth P. Green

Here’s the shocker: Meng shows that for 15 out of the 16 uses, plastic products incur fewer GHG emissions than their alternatives…

For example, when you swap plastic grocery bags for paper, you get 80 per cent higher GHG emissions. Substituting plastic furniture for wood—50 per cent higher GHG emissions. Substitute plastic-based carpeting with wool—80 per cent higher GHG emissions.

It’s been known for years that efforts to ban plastic products—and encourage people to use alternatives such as paper, metal or glass—can backfire. By banning plastic waste and plastic products, governments lead consumers to switch to substitutes, but those substitutes, mainly bulkier and heavier paper-based products, mean more waste to manage.

Now a new study by Fanran Meng of the University of Sheffield drives the point home—plastic substitutes are not inherently better for the environment. Meng uses comprehensive life-cycle analysis to understand how plastic substitutes increase or decrease greenhouse gas (GHG) emissions by assessing the GHG emissions of 16 uses of plastics in five major plastic-using sectors: packaging, building and construction, automotive, textiles and consumer durables. These plastics, according to Meng, account for about 90 per cent of global plastic volume.

Here’s the shocker: Meng shows that for 15 out of the 16 uses, plastic products incur fewer GHG emissions than their alternatives. Read that again. When considering 90 per cent of global plastic use, alternatives to plastic lead to greater GHG emissions than the plastic products they displace. For example, when you swap plastic grocery bags for paper, you get 80 per cent higher GHG emissions. Substituting plastic furniture for wood—50 per cent higher GHG emissions. Substitute plastic-based carpeting with wool—80 per cent higher GHG emissions.

A few substitutions were GHG neutral, such as swapping plastic drinking cups and milk containers with paper alternatives. But overall, in the 13 uses where a plastic product has lower emissions than its non-plastic alternatives, the GHG emission impact is between 10 per cent and 90 per cent lower than the next-best alternatives.

Meng concludes that “Across most applications, simply switching from plastics to currently available non-plastic alternatives is not a viable solution for reducing GHG emissions. Therefore, care should be taken when formulating policies or interventions to reduce plastic demand that they result in the removal of the plastics from use rather than a switch to an alternative material” adding that “applying material substitution strategies to plastics never really makes sense.” Instead, Meng suggests that policies encouraging re-use of plastic products would more effectively reduce GHG emissions associated with plastics, which, globally, are responsible for 4.5 per cent of global emissions.

The Meng study should drive the last nail into the coffin of the war on plastics. This study shows that encouraging substitutes for plastic—a key element of the Trudeau government’s climate plan—will lead to higher GHG emissions than sticking with plastics, making it more difficult to achieve the government’s goal of making Canada a “net-zero” emitter of GHG by 2050.

Clearly, the Trudeau government should end its misguided campaign against plastic products, “single use” or otherwise. According to the evidence, plastic bans and substitution policies not only deprive Canadians of products they value (and in many cases, products that protect human health), they are bad for the environment and bad for the climate. The government should encourage Canadians to reuse their plastic products rather than replace them.

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