First Nations Involvement in Land Use Planning
Overview of BC Law
BC’s regional land use plans cover the traditional territories of numerous First Nations. Although considerable efforts were made towards consensus-based land use planning in the last decade, many have been criticized for inadequate consultation with First Nations. For some regional land use plans, First Nations played an active role in the planning process. Others were developed with little or no meaningful First Nations input.81 According to a provincial government status report of the regional land use plans, many First Nations did not to participate in land use planning process because they lacked the capacity or resources, or because they believed it may harm their treaty negotiations.82 As a result, many of BC’s regional land-use plans do not reflect areas that are important or sensitive from a First Nation perspective.
For a time, the BC government also invested in joint management boards with First Nations, such as the Clayoquot Central Region Board. Although the provincial government has since moved away from joint management boards with First Nations, some specific arrangements for parks and wildlife areas do exist. One example is the Muskwa-Kechika Management Area Act,83 which promotes local strategic planning to maintain the rich wilderness while allowing resource development (including mining activities) in designated areas.84 Other examples include the Kunst’aa guu – Kunst’aayah Reconciliation Protocol85 and the Haida Gwaii Reconciliation Act,86 which recognize Haida land use planning on Haida Gwaii and provide for extensive co-management of lands and resources. In addition, there are a number of park and conservancy agreements in the Great Bear Rainforest along the central and north coast of British Columbia.
Apart from BC’s regional land use plans and joint management boards, several First Nations have developed their own land use plans. However, although the BC Supreme Court has stated that First Nation land use plans must be acknowledged87, First Nations land use plans currently carry little legal weight with the provincial government in BC.
Issue
BC First Nations have limited opportunities to participate in land use and resource management plans to control mining activities on their traditional territories.
Recommended Solutions
Recognise right of First Nations to designate no-go zones for mining activities
[Tags: Land Use Plan; No-Go Zones; Consultation]
There is a limited opportunity for First Nations in BC to negotiate agreements with the Province to designate culturally important areas as no-go zones from mining activities. (See the discussion of cultural no-go zones below.88) Greater legal protection is provided in other jurisdictions.
In the Yukon, mineral claim staking is prohibited on lands that are subject to land settlement agreements that transfer ownership rights to Indigenous peoples.89 In Ontario, Indigenous peoples in the northern part of the province may request that a regulatory authority enact a regulation specifying the boundaries of a protected area in an approved community based land-use planning area.90 In New Zealand, on the request of an iwi, a minerals program may provide that defined areas of land of particular importance to the iwi shall not be included in any mining permit.91 Under Colombian mining legislation, the Indigenous communities’ authority may indicate places in which mining activities are to be excluded based on the existence of special cultural, social and economic reasons according to their beliefs and customs.92
Involve First Nations in protected area designation
[Tags: Land Use Plans; Consultation; Involvement; Protected Areas]
Some First Nations, such as the Haida and Taku River Tlingit, have developed joint land use plans with the BC government.93 For example, lands identified as significant or important by the Taku River Tlingit First Nation have been designated as protected areas in the joint land use plan. These areas have since been granted protected status as new conservancies.94 Coastal First Nations have also been involved in establishing new conservancies in the Great Bear Rain Forest.95
Recent changes to BC’s parks legislation have also provided for the provincial government to enter into agreements with First Nations regarding their involvement in various matters pertaining to parks, conservancies and recreational areas.96 This new provision provides greater recognition of First Nations rights and is a good example of progressive laws in this area.
The promotion and involvement of First Nations and Inuit peoples in the selection and management of protected areas was one of the mains goals from the Whitehorse Mining Initiative. This initiative recognized that management of these areas would ensure that First Nations and Inuit peoples “benefit from economic opportunities related to development and operation of protected areas and have access to protected areas consistent with management plans for traditional economies and ceremonial, cultural, subsistence, and social practices”.97
Under the Bolivian Constitution, when protected areas overlap with traditional territories, Indigenous peoples are granted preferential rights. In those instances, legal provisions mandate that the management of the protected areas be conducted in accordance with the Indigenous peoples’ rules and procedures (while respecting the purpose of establishing these areas).98
Cite involvement of First Nations’ and local communities as an objective of land use planning legislation
[Tags: Land Use Plan; Objective; Consultation]
One of the objectives of Ontario’s new mining legislation provides that First Nations have a “significant role” in land use planning for Ontario’s Far North.99 Where First Nations have already developed their own land use plans, these may be incorporated into regional land use plans. Similarly, under the Mackenzie Valley Resource Management Act, planning boards are required to take into account land-use plans proposed by a First Nation, and may incorporate such plans into the more regional land-use plan.100
It is also essential that local communities be adequately consulted in the development of land-use plans. In Alberta, legislation was recently passed that requires the provincial government to consult with the public when drafting regional plans.101 In Ontario, the regulatory authority must ensure that the public is given an opportunity to provide written comments on the draft plan.102 Under Ghana’s Constitution, policy frameworks for the rational and productive development and management of certain lands are to be developed through co-ordination with all relevant public agencies and traditional authorities.103
Empower First Nations’ land-use boards, committees or processes to carry out land-use planning
[Tags: Land Use Plan; Involvement; Participation; First Nations; Capacity]
In Canada’s Northwest Territories, land-use planning has been realized under the Northwest Territories Protected Areas Strategy, and is conducted by Aboriginal land-use boards established under the Mackenzie Valley Resource Management Act.104 In the Yukon, there is the joint Yukon Development Assessment Process105 and also joint First Nation management boards such as the Yukon Fish and Wildlife Management Board.106 In BC, Strategic Engagement Agreements and Reconciliation Agreements between First Nations and the provincial government have recently been finalized. These agreements are expected to promote shared decision-making processes even if they are not strictly joint decision-making boards.
Incorporate traditional knowledge in land use plans
[Tags: Land Use Plan; Content; Traditional Knowledge; Indigenous Knowledge]
In Ontario, the legislation explicitly provides for First Nations to contribute Indigenous knowledge and perspectives on protection and conservation for the land-use planning process.107 The Lil’wat Land Use Plan, developed over the past few years by the Lil’wat Nation in south-western British Columbia, provides a good example of incorporating traditional knowledge into a land-use plan. The Lil’wat Nation first completed a draft Cultural Heritage Land and Resource Protection Plan that incorporated various information provided by Elders and other community members, including archaeology, bio-geoclimatic zones, place names, and oral history. This plan was then used by the Lil’wat Lands and Resources Department to respond to proposed activities on its traditional territories.108 Next, the Lil’wat Nation developed a Land Use Plan109 that retains the Lil’wat Nation people’s right to carry out traditional uses across the entire territory, and specifies the different types of activities that are acceptable in different parts of the territory.110 Laws mandating incorporation of Indigenous knowledge in land use planning would ensure similar approaches are followed in other areas of the province.