Redesigning British Columbia's Mineral Exploration System

November 03, 2023

Written By James Beeby, Radha Curpen, Sharon Singh and Brienne Gloeckler

On September 26, 2023, the British Columbia Supreme Court issued a ruling in Gitxaala v. British Columbia (Chief Gold Commissioner) that will affect the future of mining in British Columbia. In this case, the court found the administration of the province's mineral tenure regime breached the Crown's duty to consult with Indigenous peoples. The decision requires the Province to amend its mineral claims system to address the lack of consultation with Indigenous peoples prior to the granting of a mineral claim; something the Province was already in the process of addressing.

Notably, this is the first court decision to consider the legal effect of British Columbia’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) since the legislation came into effect in 2019. The court found that DRIPA does not incorporate the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into domestic law, nor does it create justiciable rights.

Ultimately, the judgment recognizes the importance of negotiation as the pathway to reconciliation. Justice Ross acknowledged that Indigenous peoples and the mineral exploration industry are "here to stay" and both must find a way to co-exist through a mineral tenure system that protects Indigenous rights. 

British Columbia's Mineral Tenure Regime

Mineral claims in British Columbia are regulated by the Mineral Tenure Act (the MTA). The Chief Gold Commissioner (the Commissioner) is empowered under the MTA to create and administer the province's mineral tenure system. Under the current system, any person can obtain a free miner certificate by completing an online form and paying a fee.

The holder of a free miner certificate can then electronically register a mineral claim over certain Crown land, including land subject to asserted Aboriginal rights, that is not the subject of a pre-existing mineral claim or a "no-staking" reserve. The mineral claim is automatically granted to the miner. No consultation with or notification to affected Indigenous peoples occurs when a mineral claim is registered. The claim holder is granted various rights, including the exclusive right to explore for and own the minerals that exist within the claim area. However, a permit under the Mines Act is required for exploration activities that involve mechanical disturbance which includes exploratory drilling, excavation, processing, concentrating, waste disposal and site reclamation. Consultation occurs when, and if, the miner applies under the Mines Act for approval.

The Petitioners' Claims

The petitioners in this case, Gitxaala Nation and Ehattesaht First Nation, asserted that the granting of mineral claims pursuant to the MTA:

• breaches the Crown's constitutional duty to consult  by allowing automatic registration of claims without consultation, the mineral tenure system. Therefore, the petitioners submitted that the MTA is improperly implemented or, alternatively, that the MTA is not constitutionally valid; and
• is inconsistent with the rights recognized in UNDRIP and DRIPA. As a result, the petitioners sought declaratory or injunctive relief in addition to the quashing of several mineral claims granted on their asserted territory.

The Decision

Mineral Claims Trigger the Duty to Consult

The court found the Crown's duty to consult was triggered by the issuance of mineral claims under the current mineral tenure system. The duty to consult arises when the Province contemplates conduct that may adversely impact an Aboriginal right, including asserted Aboriginal title. In this case, the following adverse impacts triggered the duty:

1. adverse impacts from mineral claims to areas that are culturally and spiritually significant to the petitioners; and
2. adverse impacts from mineral claims to the petitioners' rights to own and financially benefit from the minerals that exist within their asserted territories.

However, the court found that the duty was not triggered by any impacts of mineral claims to the petitioners' traditional legal or governance systems. The petitioners alleged that the granting of mineral claims on their asserted territories adversely impacted their Aboriginal title rights to manage the land and decide how the land will be used. Justice Ross held that an adverse impact of Crown conduct must be inconsistent with the present exercise of Aboriginal rights to trigger the duty to consult. As neither petitioner held recognized Aboriginal title, the granting of mineral claims did not create an adverse impact on a present exercise of Aboriginal title governance rights. The court stated:

…[T]he obligation of the Crown is to administer the territories until such time as Aboriginal title is settled. The role of the province is to preserve the territories such that each First Nation can exercise its Aboriginal title rights after Aboriginal title is settled.

It follows that the province administering the territory (at present) in a manner that does not accord with the First Nations’ system of law, governance or management, does not create an adverse impact that triggers consultation (based solely on those rights). For the duty to consult to be triggered, the impugned Crown conduct must in some way impede the petitioners’ ability to govern their land in the future, when title is established. The petitioners submit only that their ability to govern at present is interfered with. As I explain below, this is not the type of adverse impact contemplated by the Haida Test.

The MTA is Constitutionally Valid but its Administration Breaches the Crown’s Obligations

The court found the administration of the MTA to be inconsistent with the duty to consult. However, the court did not find that the legislation itself was unconstitutional. The Commissioner, the entity responsible for implementing British Columbia's mineral tenure regime, was found to have the necessary authority and discretion under the MTA to create a system that allowed for pre-registration consultation. Thus, the MTA itself is constitutionally valid. Rather, the Commissioner's failure to require consultation prior to granting a mineral claim constituted the breach of the Crown's consultation obligations.

DRIPA Does Not Implement UNDRIP into Domestic Law

The court found that section 2 of DRIPA does not implement UNDRIP into the domestic law of British Columbia. The petitioners alleged that the rights recognized in UNDRIP became part of the law of British Columbia pursuant to section 2 of DRIPA.

This provision sets out the legislation's purposes, one of which is "to affirm the application of [UNDRIP] to the laws of British Columbia". Justice Ross held that for domestic law to implement an international instrument, more than a broad statement of purposes is required. The wording of section 2 was found to be merely a broad, purposive statement that was insufficient on its own to create substantive rights and obligations. Justice Ross did, however, use section 2 as an aid for interpreting DRIPA's other provisions.

British Columbia's Laws' Consistency with UNDRIP is Not Justiciable Under DRIPA

The court further held that section 3 of DRIPA does not require the court to adjudicate whether British Columbia's laws are consistent with UNDRIP. Section 3 provides that the government must "take all measures necessary to ensure the laws of British Columbia are consistent" with UNDRIP in "consultation and cooperation" with the Indigenous peoples of British Columbia. The court dismissed the petitioners proposition that section 3's language invokes judicial adjudication in every instance where British Columbia's laws may be inconsistent with UNDRIP. Instead, the court found that the determination of which laws are inconsistent with UNDRIP requires consultation and cooperation between the government and the Indigenous peoples.

As a result, the court issued a declaration that the Commissioner's implementation of the MTA, in so far as it permits automatic registration of mineral claims without consultation, breaches the Crown's duty to consult. The declaration is suspended for 18 months to provide the Province time either to implement a regime that allows for consultation or to amend the MTA itself. The claim for injunctive relief was dismissed.

Looking Ahead

On October 25, 2023, Gitxaala Nation filed a Notice of Appeal at the British Columbia Court of Appeal (the Notice) in relation to the decision. The Notice appeals the Supreme Court's findings regarding DRIPA, the suspension of the declaration, and the denial of injunctive relief. Gitxaala Nation seeks declarations including that:

• UNDRIP applies to all laws of British Columbia;
• the consistency of British Colubmia's laws and UNDRIP is justiciable;
• the current mineral claims regime is not consistent with UNDRIP;
• the Province has a statutory duty to consult and cooperate with Gitxaala Nation regarding the measures necessary to align the current mineral claims regime with UNDRIP; and
• the Commissioner is prevented from allowing the registration of any mineral claim over lands which Gitxaala Nation has asserted Aboriginal title without first consulting with Gitxaala.

While this ruling has significant implications for British Columbia's mining industry, the Province had already committed to reviewing and reforming the MTA in consultation and cooperation with First Nations and Indigenous organizations. The Province originally initiated a review process in 2018 and recommitted to the process in its 2022 throne speech.

The decision necessitates, at a minimum, one procedural change to the granting of mineral claims: pre-registration consultation with Indigenous peoples. However, the Province may seek to implement further procedural changes or make substantive changes as part of efforts to align provincial laws with the DRIPA Action Plan and the Province's view of UNDRIP. Issues relating to confidentiality, intellectual property, and the practicalities of the province's mineral exploration industry will need to be considered when designing a regime that allows the Province to meet its obligations and commitments while also positioning British Columbia to take advantage of the emerging clean global economy. 

Although the decision provides the Province 18 months to make amendments, the current government may take steps sooner, especially as the MTA contains tools that the Province can utilize to align the mineral claims system with the decision. In the meantime, industry, government and Indigenous communities across British Columbia need to adequately prepare themselves for the coming changes. 

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