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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.

Economy

Today’s federal government—massive spending growth and epic betting

Published on

From the Fraser Institute

By Jock Finlayson

One can legitimately ask whether the federal government has simply grown too big, complex and unwieldy to be managed at all

The Trudeau government’s 2024 budget landed with a thud, evoking little enthusiasm and drawing spirited criticism from business leaders, investors, provincial premiers and (of course) the opposition parties. Several elements of the budget have garnered outsized attention, notably the pledge to run endless deficits, the imposition of higher capital gains taxes, and various new programs and policy initiatives intended to address Canada’s housing crisis.

But the budget includes a few eye-catching data points that have been downplayed in the subsequent political and media commentary.

One is the sheer size of the government. The just-completed fiscal year marked a milestone, as Ottawa’s total spending reached half a trillion dollars ($498 billion, to be exact, excluding “actuarial losses”). According to the budget, the government will spend $95 billion more in 2024-25 than it planned only three years ago, underscoring the torrid pace of spending growth under Prime Minister Trudeau.

One can legitimately ask whether the federal government has simply grown too big, complex and unwieldy to be managed at all, even if we assume the politicians in charge truly care about sound management. How many parliamentarians—or even cabinet ministers—have a sufficient understanding of the sprawling federal apparatus to provide meaningful oversight of the vast sums Ottawa is now spending?

The ArriveCAN scandal and chronic problems with defence procurement are well-known, but how good a job is the government doing with routine expenditure programs and the delivery of services to Canadians? The auditor general and the Parliamentary Budget Officer provide useful insights on these questions, but only in a selective way. Parliament itself tends to focus on things other than financial oversight, such as the daily theatre of Question Period and other topics conducive to quick hits on social media. Parliament isn’t particularly effective at holding the government to account for its overall expenditures, even though that ranks among its most important responsibilities.

A second data point from the budget concerns the fast-rising price tag for what the federal government classifies as “elderly benefits.” Consisting mainly of Old Age Security and the Guaranteed Income Supplement, these programs are set to absorb $81 billion of federal tax dollars this year and $90 billion by 2026-27, compared to $69 billion just two years ago. Ottawa now spends substantially more on income transfers to seniors than it collects in GST revenues. At some point, a future government may find it necessary to reform elderly benefit programs to slow the relentless cost escalation.

Finally, the budget provides additional details on the Trudeau government’s epic bet that massive taxpayer-financed subsidies will kickstart the establishment of a major, commercially successful battery and electric vehicle manufacturing “supply chain” in Canada. The government pledges to allocate “over $160 billion” to pay for its net-zero economic plan, including $93 billion in subsidies and incentives for battery, EV and other “clean” industries through 2034-35. This spending, the government insists, will “crowd in more private investment, securing Canada’s leadership” in the clean economy.

To say this is a high-risk industrial development strategy is an understatement. Canada is grappling with an economy-wide crisis of lagging business investment and stagnant productivity. Faced with this, the government has chosen to direct hitherto unimaginable sums to support industries that make up a relatively small slice of the economy. Even if the plan succeeds, it won’t do much to address the bigger problems of weak private-sector investment and slumping productivity growth.

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Fraser Institute

Canada can solve its productivity ‘emergency’—we just need politicians on board

Published on

From the Fraser Institute

By Jake Fuss

Policymakers are slowly acknowledging the problem, but their proposed solutions are troubling.

According to Carolyn Rogers, senior deputy governor of the Bank of Canada, it’s time to “break the glass” and respond to Canada’s productivity “emergency.” Unfortunately, the country is unlikely to solve this issue any time soon as politicians are doubling down on the policy status quo rather than making sorely needed reforms.

Worker productivity—the level of output in the economy per hour worked—is a crucial indicator of a country’s underlying economic performance. When productivity increases, we not only increase our output and efficiency, but worker wages typically rise as well.

According to Statistics Canada, the country’s productivity dropped for six consecutive quarters before eking out a small gain in the final quarter of 2023. Rogers is right, this is an emergency, and it’s unsurprising that living standards for Canadians are falling alongside our productivity. Since the second quarter of 2022 (when it peaked post-COVID), inflation-adjusted per-person GDP (a common indicator of living standards) declined from $60,178 to $58,111 by the end of 2023—and declined during five of those six quarters, now sitting below where it was at the end of 2014.

Policymakers are slowly acknowledging the problem, but their proposed solutions are troubling. Federal Finance Minister Chrystia Freeland, for instance, recently emphasized the importance of making “investments in productivity and growth.” Yet, the federal government increased taxes on capital gains in its recent budget, which will disincentivize investment in Canada. Usually, when a politician says the word “investment” this is a fancy way of saying we need more government spending.

And in fact, more government spending appears to be the popular solution to every problem for most governments in Canada these days. Canadian premiers and the prime minister already support this approach in health care even though it’s been tried for decades. The result? In 2023, the longest wait times for health care on record despite having the most expensive system (as a share of GDP) among high-income universal health-care countries.

And now, these same policymakers are advocating for the same approach to boost productivity—that is, throw taxpayer money at the problem and hope it will somehow go away.

But there’s hope—governments have other options. For starters, governments from coast to coast could eliminate interprovincial trade barriers, which limit productivity improvements by (among other things) shielding inefficient local businesses from competition from businesses in other provinces. Governments also effectively prohibit the entry of foreign-owned competitors in crucial industries such as telecommunications and air travel. There’s less incentive for Canadian firms to innovate or improve when there’s no threat to shake things up.

Moreover, if governments reduced regulatory red tape and subsequent compliance costs, firms could allocate more resources towards training their workers, investing in equipment, and producing new and better products. And if governments reduced tax rates on families and businesses, they could make Canada more attractive to productive businesses, high-skilled workers and investors. Our current relatively high tax rates on capital gains, personal income and businesses income discourage capital investment and scare away the best and brightest scientists, engineers, doctors and entrepreneurs.

The Trudeau government, and other governments in Canada, seemingly want to spend their way out of our productivity emergency. While some level of government spending can help improve productivity, continued spending increases reallocate resources from the private sector to the government sector, which is by nature less productive. Governments should impose credible restraints (i.e. fiscal rules) on the growth of government spending to prevent this crowding out of private-sector investment.

There are plenty of ways Canada can boost productivity. We just need policymakers to be on board.

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