Ministerial Order 229-2010
an obscure document with significant consequences for UBC's Land Use Planning
One needs to have a particular kind of interest in obscure government documents (which I do), be directly involved in the process (which I am not), or stumble accidentally upon it (as I did via google) to find Ministerial Order 229-2010.
On August 18, 2010, Ben Stewart, then Minister of Community and Rural Development, ordered that a set of obligations and expectations be “imposed on the Board of Governors (the ‘Board’) of the University of British Columbia (‘UBC’).” This order “imposed’ upon the Board the duty to consult “with persons, organizations and authorities it considers will be affected.” In addition the Board was “required to specifically consider whether consultation is required with” the University Neighbourhoods Association, University Endowment Lands, Greater Vancouver Regional District, City of Vancouver, Vancouver School District; and Provincial and federal governments and their agencies. All of these consultations we “in addition to the public hearing required under [provincial law] … and must be early and ongoing [emphasis added].”
The next clause, item 4, is of particular interest as it essentially delegates procedural aspects of the Crown’s duty to consult with a First Nation whose Aboriginal Rights and Title might be infringed upon by the enactment of UBC’s Land Use Plan once approved by the provincial government.
For more than twenty years I have been involved in ‘Duty to Consult’ processes. My roles have involved writing expert opinion reports documenting a First Nations’ asserted rights and title, participating in and writing traditional use and occupancy studies (used as part of the process to document rights and title), and providing advice to First Nations and their legal counsel on the historical, ethnographic, and archival resources required for the assertion of rights and title. I have also been involved in consultations with industry and government proponents on projects such as oil sands and LNG bulk transport, wind power generation, mining exploration, energy transmission, and fisheries/fish transport/forestry projects. I have participated on technical working groups in environmental assessments on behalf of First Nations. I have also written rebuttal reports that critique government, industry, or conflicting expert reports for other First Nations. All of this background informs the following discussion of clause 4 in MO 229-2010.
Clause 4: Engagement with Musqueam
The first thing to note is that the clause says nothing explicitly about Musqueam’s Aboriginal Rights and Title under section 35 of the 1982 Constitution Act. Instead, the Ministerial Order refers to Musqueam “interests.” This is consistent with the province’s careful avoidance of explicit mention of rights and title. See their guide with respect to environmental assessments, where they acknowledge a legal obligation to consult and accommodate, but make reference only to First Nations’ “interests,” not their rights and title. This despite the fact the legal background is built around rights and title litigation.
Here’s a summary definition of rights and title. This is quoted directly from the UBC Indigenous Foundations web page. I would direct those interested in more details to visit that site.
Aboriginal rights are collective rights which flow from Aboriginal peoples’ continued use and occupation of certain areas. They are inherent rights which Aboriginal peoples have practiced and enjoyed since before European contact.
Aboriginal title refers to the inherent Aboriginal right to land or a territory. Aboriginal rights are inherently tied to the land and their access to it– this is why title is frequently mentioned separately.
Aboriginal Rights and Title have not been extinguished in most of BC. Existing rights and title are acknowledged in section 35 of the 1982 Constitution Act. As a consequence the Crown has a duty to consult when it permits any action that may infringe upon an existing right and/or title (whether such rights and title have been proven or not). Extinguishment can only occur through a Treaty between the Crown and a specific First Nation. So while the Ministerial Order refers to “Musqueam interests,” what is really being discussed are Musqueam’s asserted Aboriginal Rights and Title.
A new UBC Land Use Plan that envisions developing UBC land (which could be returned to Musqueam by the Crown) is a potential infringement of Musqueam title to the land. UBC, as a private entity, is not itself obligated to discuss their land use plan with Musqueam (except for the fact of the Ministerial Order). Where the duty to consult kicks in is at the point the provincial government approves UBC’s official land use plan. What clause 4 does is delegate to UBC what the Crown called “engagement,” but in fact is the technical process for consultation as a result of the potential infringement of Musqueam Rights and Title.
This is actually a big deal.
This also explains why there is a very detailed parallel Musqueam Engagement process for Campus Vision 2050. At the time I wrote the story about the Musqueam Engagement process (December, 2022) I had yet to find MO 229-2010. With it now in hand, it is clear UBC has no option but to set up this parallel engagement process - MO 229-2010 requires it.
Strength of Claim
Some readers might wish to know why only Musqueam is specifically named in MO 229-2010 and no other First Nations are included. There is nothing in the Ministerial Order that would suggest why. However, based on my professional experience I am pretty sure it has something to do with a strength of claim analysis.
Strength of claim assessments have their roots in a series of court decisions related to the Haida Nation. In Haida Nation, 2004 SCC 73, [2004] 3 SCR 511, the Supreme Court established that the scope of the duty to consult and accommodate is “proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or Title, and to the seriousness of the potentially adverse effect upon the right or Title claimed.” Hence the two tables above in the federal consultation guide.
What the exclusion of other First Nations with overlapping claims to Point Grey suggests is that somewhere along the way a strength of claim assessment has been made that considers all other competing First Nations to have weak claims and thus the duty to consult them is minimal.
It can be inferred that in and about 2010 the Ministry of Attorney General completed a strength of claim assessment on Musqueam claims. The conclussions of that assessment is included in the “Joint Federal / Provincial Consultation and Accommodation Report for the Trans Mountain Project including Relevant Annexes.” The same report includes summaries of strength of claims assessments for Squamish and Tsleil-Waututh Nations.
The underlying provincial government strength of claim report cited does not appear to be in the public domain. What is discussed in the Trans Mountain Pipeline consultation report is restricted to marine and intertidal areas. The specific land mass of Point Grey was not in the purview of the consultations and assessments related to the Trans Mountain Pipeline expansion project. Thus the online report I was able to locate is silent on the strength of claim assessment of the terrestrial spaces.
It is reasonable to infer that the provincial government considers Musqueam to hold a moderate to strong claim over Point Grey. Squamish and Tsleil-Waututh Nations are likely considered to hold significantly weaker claims and thus have no ‘interests’ that would be infringed upon in UBC land use planning.
What does a land acknowledgement mean now?
UBC has been delegated the Crown’s duty to consult on the potential infringement of Musqueam Rights and Title as that pertains to Crown approval of UBC’s Land Use Plan (Campus Vision 2050). In addition to this obligation we know, based on the Provost’s comments during the February 1, 2023 Roundtable on Decolonization, that UBC is negotiating a new relationship agreement with Musqueam.
Irrespective of holding the delegated duty to consult over land use planning, UBC can not legally affirm or acknowledge Aboriginal Rights and Title. It is highly likely that any UBC agreement is being conducted with clear instructions from the province, very likely directed by the Ministry of the Attorney General in cooperation with the Ministry of Advanced Education. One can presume the Crown has been clear with UBC over what they can and cannot agree to with Musqueam.
Thus, and until such a time as Musqueam wins a rights and title court case or signs a Treaty, UBC’s acknowledgement of sitting on the “traditional, ancestral, and unceded territory of the Musqueam people” must be taken as a symbolic, not material, act.