In fall 2023, the British Columbia Supreme Court ordered that B.C. must update provincial mining legislation to ensure First Nations are consulted before any staking of mineral claims.
The Court also commented on the interpretation of the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which recognizes the United Nations Declaration on the Rights of Indigenous People (UNDRIP) in B.C. The Court decided that DRIPA does not implement UNDRIP into provincial law or create any legal basis to sue. The Court’s decision may impact the interpretation of the federal government’s UNDRIP legislation which was passed in 2021.
Background
In Gitxaala v British Columbia (Chief Gold Commissioner), two First Nations, Gitxaala Nation and Ehattesaht First Nation, claimed that the current mineral tenure system contravened the duty to consult. In a 2004 decision, Haida Nation v British Columbia (Minister of Forests), the Supreme Court of Canada declared that the government has a duty to consult Indigenous peoples when it has knowledge of a potential or established Aboriginal or Treaty right and takes action that may adversely affect the right.
Mineral exploration in B.C. is regulated by the Mineral Tenure Act (MTA), which allows a free miner (a person who holds a valid and subsisting free miner certificate) to register a mineral claim over unclaimed Crown land. The mineral claim gives the holder various rights, including the right to explore and dig up the area to search for minerals.
The next step is to obtain a mineral lease under Part 3 of the MTA. The MTA uses mandatory language, meaning that once the fee is paid, land is surveyed, and notice is posted, the Province must issue the mineral lease. If the mineral lease holder wants to explore further by using machinery or explosives or establish a commercial mining operation they must obtain additional permits under the Mines Act.
Since 2004, mineral claims in B.C. can be registered automatically online and there is no system for consulting Indigenous peoples whose rights may be affected by the claim.
The First Nations argued that granting mineral claims impacted their claims to Aboriginal title over their traditional territories and triggered the Province’s duty to consult. The Province argued the duty to consult was not triggered at the mineral claim stage, but only once the Province authorized further development.
The duty to consult on mineral claims
The Court found the duty to consult was triggered because B.C.’s mineral claim system could cause adverse impacts on areas of significant cultural and spiritual importance to Gitxaala Nation and Ehattesaht First Nation. The system also impacted the First Nations’ rights to own and receive a financial benefit from the minerals within their asserted territories.
The Court said that the adverse impacts must be viewed through the lens of the First Nation and not the Province. Though the Province argued that the physical disturbance from mineral claims was negligible, from the First Nations’ perspective, mineral claim holders’ activities could potentially – and permanently – damage areas of cultural or spiritual significance. The loss of mineral rights was also an adverse impact. While a mineral claim is temporary, the removal of minerals that comes with it is not. Removing minerals reduces the land value and transfers an element of the First Nation’s asserted ownership to a third party.
The Court found that the Province’s Chief Gold Commissioner failed by not establishing a process for consulting First Nations who had asserted title or rights over land that was available on the mineral claims registration website.
The Court declared that the Province owes a duty to consult, not just to the Gitxaala Nation and Ehattesaht First Nation, but to any First Nations with asserted title and rights across B.C. However, the Court suspended the declaration for 18 months to give the Chief Gold Commissioner time to develop a process to fulfil the consultation requirement.
The Court refused to quash existing mineral claims because the duty of the consult is a forward-looking remedy which does not to remedy past wrongs, including past breaches of the duty itself.
Declaration on the Rights of Indigenous Peoples Act (DRIPA)
The First Nations also asked the Court to declare that the Province’s current system for granting mineral titles under the MTA was inconsistent with UNDRIP. On this point, the Court found that DRIPA did not implement UNDRIP into domestic law in B.C. or create any justiciable rights which could be used as a basis for lawsuit.
Section 2 of DRIPA states that the purpose of the Act is to:
(a) to affirm the application of the Declaration to the laws of British Columbia;
(b) to contribute to the implementation of the Declaration;
(c) to support the affirmation of, and develop relationships with, Indigenous governing bodies.
The Court stated that this provision did not create substantive rights but was a purpose statement intended to be used as an interpretive aid for the other provisions of the Act. For that reason, the Court did not accept that section 2 of DRIPA was sufficient to implement an international instrument into domestic law. For an international instrument such as UNDRIP to be “implemented” in Canadian law, the legislative branch of government must do so explicitly, otherwise this would allow the government to create laws without going through the democratic process. The conclusion on this issue, simply put, is that an affirmation does not equal implementation. As such, UNDRIP remains a non-binding international instrument in B.C.
Appeal to the British Columbia Court of Appeal
On October 25, 2023, Gitxaala Nation filed notice to appeal the decision of the British Columbia Supreme Court. Gitxaala Nation is appealing: (1) the lower Court’s refusal to quash the existing mineral claims challenged by Gitxaala; (2) the Court’s refusal to prevent further automatic claim-staking in Gitxaala territories; and (3) the Court’s decision that DRIPA does not implement UNDRIP into B.C. law nor does it create justiciable rights.
Conclusion
This was the first judicial consideration of the legal effect of DRIPA and will likely influence judicial consideration of other UNDRIP legislation. This decision will also have a significant impact on the process for obtaining mineral claims and mineral leases in B.C., although the Province has not yet announced its proposed changes to the process.
In other provinces and territories, the duty to consult before issuing mineral claims will depend on a variety of issues, such as the specific legislation at issue and whether the issue has been previously considered in Court. Similar to Gitxaala, in 2012 the Yukon Court of Appeal held that granting a mineral claim involved a transfer of mineral rights that could adversely affect Aboriginal title and thereby trigger the duty to consult. In contrast, in 2015, the Saskatchewan Court of Appeal held that there is no duty to consult when the Province issues mineral exploration permits because there is no potential for adverse impacts at that stage. The Gitxaala decision may prompt consideration of this issue in other provinces.
If you have any questions about mineral claims or the duty to consult, please contact one of the lawyers in our Energy, Mining & Natural Resources or Indigenous practice group who would be happy to assist you.
Note: This article is of a general nature only and is not exhaustive of all possible regulatory requirements, legal rights or remedies. Laws may change over time and should be interpreted only in the context of particular circumstances. These materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.