This bulletin provides an update on the Bill's progress, and summarizes recent government commentary on the legislation.
Bill 41 passed second reading on October 31, 2019. Through debate at second reading, the Minister of Indigenous Relations and Reconciliation clarified that Bill 41 "does not, in and of itself, give the UN declaration legal force and effect" and "is not a switch that will change every statute and process in the government the day after this act is proclaimed".2 Rather, as described in our first bulletin, Bill 41 is a catalyst to enable future legislative changes, to align BC's laws with UNDRIP over time.
While providing some clarification, debate at second reading also highlighted key uncertainties with the legislation, including the following concern articulated by Ellis Ross, Liberal MLA for Skeena and former Chief Councillor for the Haisla Nation Council:3
Now, if you can answer that, can somebody tell me what
happens when the Crown is at the table with three or four different
First Nations, and three First Nations agree but one doesn't?
Does the Crown withhold its decision? If that's not a veto,
I'd like some explanation on what that is, if the Crown
doesn't make a decision until they get that final agreement. In
some cases, this could take months, if not years.
So just a little bit of clarity.
The Minister of Indigenous Relations and Reconciliation did not respond directly to Mr. Ross on this issue; however, government fact sheets on the legislation emphasize that the Province retains authority for making decisions in the public interest and the legislation does not provide for the ability to veto decisions on resource projects. In addition, we have identified the following key points from the industry-specific fact sheets provided by the government:
- Existing laws will not change immediately, as bringing provincial laws into alignment will take time.
- Companies will not immediately see changes when the legislation comes into effect.
- The legislation will not result in the re-opening of existing permits or certificates, or affect current regulatory timelines.
- The legislation does not provide for the ability to veto decisions on resource projects.
- The Province may determine that a decision is in the public interest and allow a project to proceed even if consensus is not reached.
- The legislation does not change existing Impact Benefit Agreements or existing natural resource benefits sharing agreements.
- Future legislative amendments are required to enable joint decision-making and consent-based decision-making under statutes within the authority of the Minister of Forests, Lands, Natural Resource Operations and Rural Development.
- There is not expected to be any immediate effect on statutory decision-making until such time as legislative amendments occur.
- The Province retains authority for making decisions in the public interest and as such, the legislation does not provide for the ability to veto a project or application without due process and agreement.
Mining and Oil and Gas6
- In the short term, the Ministry of Energy, Mines and Petroleum Resources (EMPR) does not anticipate any significant changes to the regulatory framework for mining and oil and gas.
- The legislation will not change how EMPR consults with First Nations nor how operational decisions are made. Any future changes (e.g., amendments to legislation) would come in collaboration with all parties.
- The legislation will not affect existing agreements.
- Where a treaty or other comprehensive agreement containing a consent requirement is in place, the consent of Indigenous Nations participating in an environmental assessment would be required in order for a project to proceed. Not all environmental assessments will be subject to such agreements, and the development of any such agreements will be done transparently, in consultation with stakeholders.
- If agreements developed within the framework of the Declaration on the Rights of Indigenous Peoples Act contain a requirement for consent regarding environmental assessments, the new Environmental Assessment Act includes an enacting legal mechanism (in s. 7).
Overall, current messaging indicates that businesses will not see an immediate change when Bill 41 becomes law. Instead, future change may arise from:
1. Legislative amendments, developed in consultation with Indigenous groups and other stakeholders; and
2. Decision-making agreements between the government and Indigenous governing bodies.
We will continue to keep readers apprised of further developments regarding Bill 41 as it progresses towards law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.