BC Supreme Court rules that the granting of mineral claims triggers duty to consult

In Gitxaala v. British Columbia (Chief Gold Commissioner), the British Columbia Supreme Court (BCSC) recently decided that the granting of mineral claims triggers the duty to consult, and that the current mineral tenure system, which does not require Indigenous consultation, contravenes section 35 of the Constitution Act, 1982. Although the relief ordered does not affect existing projects, the provincial government is required to design a new system that allows for the discharge of the duty to consult within the next 18 months. Given the similarities between British Columbia’s (BC) system and those in other provinces which use a “free-entry” system, this novel decision may have implications for future early-stage mining projects in other parts of the country.

What you need to know

• Two First Nations challenged the constitutionality of BC’s mineral tenure system, arguing that the granting of mineral claims through a free-entry system without requiring Indigenous consultation contravenes the Crown’s duty to consult.
• The Court found that the duty to consult is triggered by the granting of mineral claims. The current system conflicts with the duty because mineral claims are automatically registered and there is no consultation with Indigenous communities at this stage (consultation is required at later permitting stages).
• The Court’s decision does not invalidate any currently approved mining rights or affect holders of existing mineral claims or mining leases in BC. The current system can continue to operate until a new system is implemented.
• The BC government has 18 months to develop and implement a new system that adequately consults Indigenous communities at the time mineral claims are granted.
• Other provinces have somewhat similar mineral tenure regimes to BC, and as a result, this decision may have implications across the country.

Decision

The Gitxaala First Nation and Ehattesaht First Nation challenged the constitutionality of BC’s mineral tenure system, arguing that the first step of the process, the issuance of mineral claims through the free-entry system, contravenes the Crown’s duty to consult with potentially affected Indigenous communities. This step of the process does not require Indigenous consultation, which occurs at later stages of the regulatory process under the current framework.

The Court agreed, finding that the duty to consult is triggered by the granting of mineral claims. The Court found that this step may adversely affect areas of significant cultural and spiritual importance to Indigenous communities, and the rights of Indigenous communities to own and achieve financial benefit from the minerals within their asserted territories. The latter point is significant, as much of BC is covered by unresolved Aboriginal rights and title claims.

The BCSC found that the current system is inconsistent with the duty to consult because mineral claims are automatically registered and there is no consultation with First Nations until later in the tenure process. However, the Mineral Tenure Act itself was not found to be unconstitutional, as consultation can be achieved within the Chief Gold Commissioner’s (CGC) discretionary framework.

Notably, the Court’s decision does not invalidate any approved mining projects or affect existing mining rights. The Court also declined to order the province to stop issuing mineral claims over Gitxaala and Ehattesaht territories, which allows the province to continue granting mineral claims under the current system until a new system is inaugurated.

The Court ordered declaratory relief for the contravention of the duty to consult but suspended its effects. The BC government is ordered to develop and implement, within 18 months, a new approach that discharges the duty to consult at the time mineral claims are granted. The Court did not discuss what specific measures would satisfy the duty to consult but noted that the CGC could design a regime within the existing legislative framework or amend the legislation itself.

The Court also discussed the Declaration on the Rights of Indigenous Peoples Act (DRIPA), passed in BC in 2019. The DRIPA puts in place a process to implement the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) into BC law as BC’s framework for reconciliation. The Court found that the DRIPA does not implement UNDRIP into BC law itself (further legislative action is needed), nor does it create any justiciable rights for Indigenous peoples. Instead, the DRIPA was used as an interpretive aid by the Court.

Implications

While the granting of claims in BC will not be affected in the near future, companies should be aware that consultation may soon play a bigger role earlier in the mineral tenure and exploration process. BC’s free-entry system is analogous to those in most provinces and territories (except for Alberta, Nova Scotia and PEI), suggesting that this decision could have implications for early-stage mining projects in other parts of the country if similar claims are brought.