British Columbia Proposes Significant Overhaul of the Heritage Conservation Act to Implement DRIPA

The British Columbia government is proposing major changes to the Heritage Conservation Act to align it with B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA). The Heritage Conservation Act protects heritage sites and objects and applies to over 60,000 currently known heritage sites in B.C. The proposed changes include a variety of potential consent-based decision-making agreements with First Nations to recognize First Nations’ laws and authority over heritage sites in their territory. The criteria for entry into these agreements and the full impact of these agreements are not specified, but will likely introduce further complexity in heritage permitting.

Public consultation on the proposed changes is ongoing through November 14, 2025. Interested parties may provide written submissions on the government’s website.

Background

DRIPA was adopted by the B.C. legislature in 2019, providing a framework to implement the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) in B.C. law. Since that time, the province has been identifying key legislation that requires amendments to align with DRIPA. We previously wrote about the province’s consultation on proposed reforms to the Land Act to facilitate shared decision-making under DRIPA. See our February 2024 Blakes Bulletin: Implementing UNDRIP: B.C.’s Land Act Reform Sparks Public Debate.

The province has now identified amendments to the Heritage Conservation Act as a priority to achieve consistency between provincial laws and the UN Declaration. As part of this effort, the province has identified the following objectives to inform its development of the proposed amendments:

• Strengthening the role of First Nations in decision-making and in the management of their cultural heritage in alignment with DRIPA
• Streamlining the permitting process
• Protecting heritage more effectively

The Current Regime

The purpose of the Heritage Conservation Act is to encourage and facilitate the protection and conservation of cultural heritage in B.C. Under the current Act, heritage sites and objects are protected and may not be moved, altered or damaged without a permit. The Act provides the minister (B.C.’s Minister of Forests) with the power to enter into agreements with First Nations and local governments. It also provides that the minister may enter into “section 4 agreements” with First Nations for the joint management of heritage sites and objects. In practice, these section 4 agreements have not been widely used to date.

The Proposed Regime

The proposed reforms include a wider variety of agreements to facilitate consent-based decision-making:

• Joint or Consent-Based Decision-Making Agreements: These agreements would apply to Crown land and ensure First Nations are involved in decision-making, including permitting decisions, and could include the delegation of compliance and enforcement power to First Nations.
• Jurisdictional Agreements: These agreements would recognize First Nations’ heritage laws and vary application of the Heritage Conservation Act.
• Operational Agreements: These agreements would apply to Crown and/or private land and expand the scope of existing section 4 agreements, including related to matters such as heritage sites and objects, permitting requirements, decision-making criteria, cultural protocols, methods for identifying and managing heritage objects and sites and the continued use of sites.

The province is also proposing changes to the permitting regime, including replacing the current permitting regime with a project-based permit model and introducing several fit-for-use permit types. It would also increase First Nations’ influence in permitting, including a process for seeking consent and expanding decision-making criteria.

Commentary

The proposed changes could significantly affect First Nations and project proponents (including Indigenous project proponents). The proposals lack specificity on how these amendments will be operationalized, creating legal and procedural uncertainty for those navigating the regulatory regime. It is unclear how the proposals advance the province’s goal of streamlining the permitting process.

For example, the engagement documents do not address scenarios involving overlapping territorial claims by multiple First Nations, which includes much of B.C. In overlap areas, it remains unclear which Nation(s) will be provided with the opportunity to enter into the aforementioned agreements, and the effect of such agreements on other Nations that claim the same area. Similarly, the proposed amendments do not address which Nation(s) will be granted the authority to manage heritage sites in these areas, how this authority will be determined, and the corresponding extent of input they may provide on permitting requirements and decisions. These and other uncertainties have the potential to result in disputes as well as significant delays in the permitting process.

Additionally, while the proposed amendments aspire to streamline the permitting process, they appear to introduce more complexity. This will increase the administrative burden for provincial staff and all parties and create less predictability in outcomes. Rightsholders and stakeholders would benefit from greater clarity on how the province proposes to implement its proposed consent-based decision-making regime and the timelines for doing so.

The province has made clear its view that, while no decisions have been made yet regarding the proposed changes, significant amendments to the Heritage Conservation Act are necessary.

For more information, please contact the authors or any other member of our Indigenous or Environmental groups.