Written By Tim Pritchard, Sharon Singh, Laurie Wright and Brienne Gloeckler
On November 8, 2023, substantial changes to B.C.'s emergency preparedness legislation took effect. Bill 31-2023, the Emergency and Disaster Management Act, (EDMA) replaced the Emergency Program Act, RSBC 1996, c 111 (the EPA), which has governed B.C.'s emergency response regime for the last three decades. EDMA was co-designed with Indigenous Nations in accordance with the Province's action plan developed under the Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 (DRIPA).
The modernization aims to incorporate key aspects of emergency management that are absent in the current regime, including acknowledging the connection between increasing emergencies and climate change, and addressing all four phases of emergency management set out in the United Nations Sendai Framework for Disaster Risk Reduction, which British Columbia adopted in 2018. These additions are imperative given the increasing frequency of climate-related disasters that impact all communities in the province.
In addition to developing a more fulsome disaster management framework, the modernized legislation aims to provide a more significant leadership role for Indigenous communities in emergency management. Through an agreement-based co-management framework, the new regime will incorporate the inherent rights of Indigenous Peoples as expressed in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Local authorities, Indigenous governing bodies and the provincial government will share responsibilities for emergency planning and will be able to collectively exercise power during emergency events.
The current emergency management regime recognizes two levels of government: provincial and local. The provincial government and local authorities, such as municipal governments, have three main decision-making powers under the EPA: the preparation of emergency plans, declarations of states of provincial and local emergency, and the exercise of emergency powers. There is no express obligation for either level of government to consult or cooperate with Indigenous authorities when exercising these decision-making powers.
Key Principles and Concepts
Indigenous governing bodies: EDMA sets out processes to recognize Indigenous governing bodies as decision-makers in emergency management. Indigenous Peoples may choose to authorize new or existing entities for emergency management decision-making. Indigenous governing bodies may enter into agreements to exercise their decision-making powers, as further discussed below.
The legislation adopts the concept and definition of Indigenous governing bodies from DRIPA. Under DRIPA, an Indigenous governing body is an entity authorized by Indigenous Peoples to act on their behalf.
Modern Treaty Nations: To better address the special government-to-government relationship that exists through a modern final agreement, EDMA designates Modern Treaty Nations as distinct local authorities in relation to their treaty areas. The Minister of Emergency Management and Climate Readiness (the Minister) and the Lieutenant Governor in Council will not have the same oversight powers over Modern Treaty Nations as they over other local authorities, such as municipal and regional governments. The Minister will not be able to approve or cancel emergency orders in treaty areas or order a Modern Treaty Nation to undertake certain actions, such as extending a state of emergency within their jurisdictional area or completing risk assessments or emergency management plans. Outside of their treaty area, Modern Treaty Nations will have the same rights as Indigenous governing bodies and will be able to enter cooperation and consultation agreements with the Province in respect of non-treaty traditional territory areas.
Traditional territory and treaty areas: EDMA will recognize traditional territories and the existence of overlapping territory interests. As defined under EDMA, traditional territory refers to geographic areas that First Nations identify as land that they and their ancestors occupied and used. Consultation and cooperation obligations and agreements arising under the new legislation are based on traditional territories and treaty areas. EDMA does not expressly describe what, if any, mechanisms will exist within the legislation to address potential conflicts within overlapping territories.
Disproportionate impacts and cultural safety: To address the disproportionate impacts of emergencies on Indigenous peoples, risk assessments and emergency management plans created under EDMA must consider "intersectional disadvantage" factors, such as age, disability, socioeconomic status, racialized status, gender identity and sexual orientation, all of which increase the likelihood of experiencing disproportionate impacts. Further, the definition of "emergency" is expanded to include events that pose a risk to objects and sites of cultural value. It is currently unknown what criteria will be used to determine which culturally valuable objects and sites will fall within this definition.
Indigenous knowledge: EDMA explicitly recognizes the value and importance of Indigenous knowledge in managing emergencies. Government ministers, local authorities, critical infrastructure owners, and public sector agencies will be required to include available Indigenous knowledge in their risk assessments and emergency management plans. EDMA provides confidentiality protections for Indigenous knowledge to ensure that information is not disclosed unless certain conditions are met. Currently, authority for Indigenous governing bodies to undertake preventative measures based on Indigenous knowledge is not expressly provided. Regulations or agreements made pursuant to EDMA may address this in the future.
Co-Management and Shared Decision-Making
EDMA establishes a framework for collaboration amongst different orders of government. The framework will enable Indigenous entities to participate in all phases of emergency management through Agreements and Consultation Activities.
Agreements for Coordination and Collaboration
To promote coordination and collaboration, the new regime will allow Indigenous governing bodies and other decision makers to enter agreements respecting the exercise of emergency management powers. Local authorities will be required to contact and make reasonable efforts to reach an agreement with Indigenous governing bodies respecting the traditional territories and/or treaty areas included in local authorities' emergency management plans when the entity is preparing, reviewing or revising an emergency management plan.
EDMA authorizes four types of agreements that are enabled by DRIPA: coordination agreements, specified coordination agreements, decision-making agreements and statutory power agreements.
Coordination agreements will coordinate the exercise of statutory response and recovery powers and Indigenous governing bodies' inherent right of self-government in responding to or recovering from an emergency. An agreement could, for example, require consultation before the provincial government exercises a power. A coordination agreement must include a process for resolving disputes related to the agreement.
Specified coordination agreements place restrictions on a non-Indigenous government's use and performance of its response and recovery powers and duties. Decision-making agreements and statutory power agreements allow statutory powers under EDMA to be exercised jointly or on a consent basis.
At least once per calendar year, the Province will be required to invite Indigenous governing bodies that are parties to agreements to meet with the Ministry of Emergency Management and Climate Readiness to discuss the effectiveness of their agreements.
Consultation and Cooperation Obligations
The Province, local governments and critical infrastructure owners will be required to consult and cooperate with Indigenous governing bodies in all phases of emergency management. Non-Indigenous entities must conduct consultation activities with Indigenous governing bodies when developing risk assessments and emergency management plans that cover traditional territory and/or treaty areas. The plans and assessments will draw on information garnered during consultation activities as well as available Indigenous knowledge.
Additionally, the provincial government and local authorities will be required to consult with Indigenous governing bodies before exercising certain response and recovery powers, such as evacuation and re-entry powers, when the exercise will affect traditional territory and/or treaty areas.
Implementation of EDMA will take place in phases. Regulations are anticipated to be phased in through mid-2024 and will be co-developed with First Nations. The Province is developing additional guidance and support for entities who will be responsible for consultation and cooperation with Indigenous entities.
To discuss the potential opportunities and implications of B.C.'s new emergency management legislation, please contact the authors or a member of our Aboriginal Law practice group.