B.C. court orders province to change mineral staking regime to include early consultation with First Nations

Updated Sept. 28, 2023 with a statement from the Association for Mineral Exploration.

The British Columbia Supreme Court has given the provincial government 18 months to establish a new regime that will see Indigenous nations consulted at the first stages of individuals and corporations staking mineral claims.

The ruling comes following two separate actions brought against the Chief Gold Commissioner of B.C. The actions, by Gitxaała Nation in October 2021 and Ehattesaht First Nation in June 2022, were joined and heard in Vancouver over 14 days in April and May this year.

In a 148-page written decision delivered Sept. 26, Justice Allan Ross ruled that the chief gold commissioner (CGC) “has discretion, within the existing MTA (Mineral Tenure Act), to create a structure that provides for consultation with First Nations…” and not doing so was “simply wrong.”

The chief gold commissioner falls under the Ministry of Energy, Mines and Low Carbon Innovation.

The present practise allows “free miners,” whether individuals or corporations, to register a claim through an online process at a nominal fee, then go on to the territory and use hand tools to explore for minerals.

If minerals or evidence of minerals is found, an application for a mineral lease under the MTA is then made. A mining permit, which follows, falls under the Mines Act, which governs all activities beyond exploration. It is not until this point that the Indigenous nation must be consulted.

That’s not good enough and that’s not soon enough, ruled Justice Ross, who said mineral claims constituted both an adverse physical impact and a cultural/spiritual impact on the territory.

“I have found that a duty to consult arises. It follows…that the province is in breach of its duty to consult with” Gitxaała and Ehattesaht First Nations, wrote Ross.

The nations asked the court to quash existing minerals rights in their territories. While the court did not do that, the court did encompass the entire province in its decision for consultation prior to mineral claims being made.

That sweeping inclusion, said Gavin Smith, Gitxaała legal counsel, was “a little bit surprising.”

“I think from Gitxaala’s work on this with other nations, (the ruling is) consistent with the fact that this was a system that needed to change really throughout B.C.,” he said.

A number of B.C. First Nations, as well as the B.C. Assembly of First Nations, Union of British Columbia Indian Chiefs, and First Nations Summitt, supported Gitxaała and Ehattesaht First Nations in their legal action.

As for providing the province 18 months to put a new regime in place, Smith says the time frame was what B.C. had requested, but it presents risks and “significant concerns” that free miners may rush to stake mineral claims.

“I think any free miners who are trying to sneak in under business-as-usual at the last minute will need to be aware that this case is really a game changer and they're prejudicing their own interests in the long term because we're headed towards consent and recognition of Indigenous decision-making,” said Smith.

In a statement to Windspeaker.com, Keerit Jutla, president and CEO with the Association for Mineral Exploration (AME), said retaining the status quo for 18 months will provide “clarity and predictability” through 2024 while AME engages with key stakeholders and B.C. “to ensure the mineral claim staking process remains competitive and efficient while respectful of the rights of Indigenous Peoples.”

AME intervened in the court proceedings, and along with the Mining Association of British Columbia and the Prospectors and Developers Association of Canada, supported the position of the province.

B.C. also was supported in its arguments against Gitxaała’s and Ehattesaht’s court actions by a number of holders of registered mineral claims.

While this ruling was made by a B.C. court, Smith expects it will have an impact across the country, where many Indigenous nations are fighting mineral claim stakes and exploration in their respective provinces.

Smith points to the fact that Gitxaała drew on the Ross River 2012 decision in the Yukon which also dealt with mineral tenures.

Wrote Justice Ross, “In my opinion, (the Ross River 2012) decision was properly decided…In this case, the petitioners assert rights to subsurface minerals. The honour of the Crown requires consultation prior to transferring away the rights to those minerals to a third party.”

“I think it's hopeful that this decision will play a similar role in supporting recognition of Indigenous rights regarding mineral exploration elsewhere,” said Smith.

The outcome of what Smith considers a “parallel prong” in the Gitxaała and Ehattesaht First Nations’ case was not as favourable.

B.C.’s Human Rights Commissioner (BCHRC) intervened in the case to argue that B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) implemented the United Nations Declaration on the Rights of Indigenous Peoples into the province’s domestic law.

It was a position that exceeded the positions taken by Gitxaała and Ehattesaht First Nations and B.C., but Justice Ross still addressed it.

He wrote that as sect. 2 of DRIPA includes the wording “to contribute to the implementation” of the UN Declaration, that “did not, in fact, accomplish ‘implementation’ as the BCHRC suggests.”

In a statement issued yesterday, BC Human Rights Commissioner Kasari Govender said she was “disappointed that the Court’s judgement undermines the important role the Declaration Act ought to play in decolonization and reconciliation efforts in this province.”

Smith says the court’s decision to not step in and make a ruling on what the court’s role is in enforcing the UN Declaration “creates a significant concern about the requirements and provisions of the UN Declaration Act being treated as just another political promise rather than what they should be, which is a legal requirement.”

Still, he says, the court’s decision makes it clear that when it comes to reforming the MTA, “that's going to have to be done in a manner that's consistent with the UN Declaration, including the right to free, prior and informed consent. And that's just the nature of the landscape that we're existing on now.”

Smith says Gitxaała is still studying the lengthy decision and is not in a position to speak on next steps.

He adds he’s not certain what avenue the B.C. government will pursue, but the province “fought this case tooth and nail…so I think this is really a time and an opportunity for B.C. to step back and take accountability for the fact that it was breaching its constitutional obligations, and work with Indigenous nations to design a new regime as soon as possible, and certainly we hope that that's what they do.”

The Ministry of Energy, Mines and Low Carbon Innovation was also reviewing the decision.

“Modernizing British Columbia’s Mineral Tenure System, in alignment with the UN Declaration on the Rights of Indigenous Peoples, is a longstanding priority for First Nations and First Nations organizations,” the ministry said in a statement to Windspeaker.com.

“Our government shares this commitment—we remain firmly committed to implementing MTA modernization in consultation—and cooperating with—title and rights holders, as we committed to do in the Declaration Act Action Plan.”

If the decision is to be appealed, applications must be made within 30 days.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.