BC Court orders amendments to BC's free entry mineral tenure regime

11 minute read
11 October 2023

The Supreme Court of British Columbia recently found that British Columbia's long-standing mineral tenure system breaches the Crown's duties owing to Indigenous peoples.

In Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 ("Gitxaala"), the Court considered the threshold question of whether the duty to consult is triggered when the Crown grants mineral tenures based on the "free entry" regime.  After applying the well-established Haida test[1], the Court concluded that the duty was indeed triggered, and the lack of consultation with affected First Nations at the time a mineral claim is granted is a breach of the Crown's obligations.

Based on this finding, the Court ordered the Province to make legislative or policy changes that create space for the requisite Indigenous consultation before issuing mineral claims. While the Province has 18 months to rectify this breach of its constitutional obligations, we can expect some significant changes in the near future to the long-standing free entry mineral tenure regime in BC. These changes may also have corresponding impacts on neighbouring jurisdictions, such as the Yukon, which are also currently reviewing their mineral tenure regimes.

BC's free entry regime

The grant of mineral rights in British Columbia is regulated under the Mineral Tenure Act (the "MTA"). Under the MTA, "free miners" may register a "mineral claim" over unclaimed Crown land. The holder of a mineral claim is granted various rights, including the right to enter onto the surface of the claim to conduct exploratory activities. If minerals are found and the miner wishes to extract them on a commercial level, the miner must then apply for further approvals under the Mines Act.

Before 2004, mineral claims in BC required physical staking. In 2004, the Province amended the MTA by adopting an online system for mineral claims registration: the online Mineral Titles Registry. The Court in Gitxaala observed that this system was created before the notable Supreme Court of Canada decision on the duty to consult in Haida Nation, and was therefore not surprised that no consultation with potentially affected First Nations was required prior to registering a mineral claim thereunder.  As a result, however, many disputes have arisen since that time between companies, the Province and Indigenous Nations, tied to the scope of rights held by each.

Claims and remedies sought by the petitioning Nations

Gitxaala Nation and Ehattesaht First Nation, the petitioners in this case, brought forward their legal action on their asserted basis that BC's mineral tenure system breaches the Crown's constitutional duty to consult. The Nations alleged that the system adversely impacts their rights under s. 35 of the Constitution Act, 1982, and that the Province has a duty to consult them before issuing mineral claims.  The Province, in turn, argued that the duty to consult was not triggered here as the current mineral tenure system, and the granting of mineral claims, do not create adverse impacts that are sufficient to trigger a duty to consult.

The Nations sought systematic declarations (i.e., that would apply more broadly than just to their traditional territories) that the Chief Gold Commissioner (the "CGC") has a constitutional duty to consult before issuing mineral claims on lands to which Aboriginal rights and title are asserted, and that the CGC failed to do so. The Nations also sought a court declaration that the online Mineral Titles Registry operates in a way that is inconsistent with s. 35 of the Constitution Act, 1982, the BC Declaration on the Rights of Indigenous Peoples Act ("DRIPA"), and the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP").

Duty to consult is triggered by the issuance of mineral claims

The Court applied the Haida test to determine whether the duty to consult was triggered in this instance. In so doing, the Court focused on the question of whether there were any adverse impacts associated with the contemplated Crown conduct that would trigger such duty.

Adverse Impacts associated with Current Governance Rights?

At first, the Court considered the Nations' claims that the duty was triggered due to adverse impacts on their abilities to govern at present. However, it ultimately rejected that part of the claim on the basis that the Province's failure to administer the Nations' territory (at present) in a manner that does not accord with the Nations' system of law, governance or management does not create an adverse impact that triggers consultation (based solely on those rights). In support, the Court held that for the duty to consult to be triggered, the impugned Crown conduct must in some way impede the Nations' abilities to govern their land in the future, once Aboriginal title is established by them.

Adverse impacts on cultural and spiritual areas / ownership rights?

The Court did, however, agree with the Nations' claims that the mineral tenure system adversely impacts on areas of significant cultural and spiritual importance to the Nations, and upon their rights to own, and financially benefit from, the minerals within their asserted territories. The Court found that those adverse impacts were sufficient to trigger the duty to consult. In reaching this decision, the Court emphasized the importance of considering "adverse impacts" from the Indigenous perspective, as follows:

[326]    I further note that the concept of "adverse impacts" must be viewed through the lens of the First Nation. In other words, the duty to consult is not triggered when the province believes there is an adverse impact. The situation must be viewed from an Indigenous perspective. […]

The Court relied again later in its decision on such Indigenous perspective, noting that it was also relevant to assessing whether the physical disturbance was authorized under a mineral claim. The Court rejected the Province's categorization of such disturbances as "nil or negligible," and recognized instead that the Nations' perspectives must be taken into account. By way of example, the Court noted that a claim holder's right to engage in pitting, trenching and drilling; to conduct geological sampling using tools such as hand-held drills; to set up temporary residence on the claim area with tents, trailers or campers; and to obtain numbers of adjacent cells leading to a cumulative effect on the Nation asserting rights, may indeed be viewed as an adverse impact by such Nation.

As a result, the Court granted a declaration that the CGC's conduct in establishing an online system allowing automatic registration of mineral claims in the Nations' territories – without incorporating a process for prior consultation – breaches the obligations of the Crown.

In so doing it is also notable that the Court referred extensively to the earlier decision of the Yukon Court of Appeal in Ross River Dena Council v. Government of Yukon, 2012 YKCA 14 (leave to appeal to the Supreme Court of Canada denied), and agreed with the reasoning therein. In particular, the Court observed as follows:

[392]    […] An overly narrow understanding of Aboriginal title, one that excludes the rights to subsurface minerals, is inconsistent with the goals of reconciliation and upholding the honour of the Crown. As the court stated in Ross River 2012, "The duty to consult exists to ensure that the Crown does not manage its resources in a manner that ignores Aboriginal claims": para. 37.

[emphasis added]

DRIPA does not incorporate UNDRIP into BC domestic law or create justiciable rights

The Nations also argued that section 2(a) of DRIPA implements UNDRIP into BC's domestic law. Section 2 of DRIPA sets out the following purposes of that Act:

  1. The purposes of this Act are as follows:
    1. to affirm the application of the Declaration to the laws of British Columbia;
    2. to contribute to the implementation of the Declaration;
    3. to support the affirmation of, and develop relationships with, Indigenous governing bodies.

While the Court found that section 2(a) contains statements of purpose to be used for interpreting the substantive provisions of the legislation, it held that this provision is not a substantive provision in itself. Consistent with the position advanced by the Province, the Court found that the language used in DRIPA is broad and imprecise, and therefore the intent could not have been to effect such a significant outcome as implementing UNDRIP into BC law; instead, UNDRIP remains a non-binding international instrument.

The Nations further argued that section 3 of DRIPA creates justiciable rights — i.e., rights that the courts have the capacity and authority to adjudicate, suitable for judicial intervention. Section 3 states:

In consultation and cooperation with the Indigenous Peoples in BC, the government must take all measures necessary to ensure the laws of BC are consistent with the Declaration.  

The Court, however, found that the intent of this provision was not to invoke the courts to consider every instance where the laws of BC may be inconsistent with UNDRIP; rather, in the Court's view, it only obligated the Province to consult and cooperate with Indigenous Peoples in BC to determine which provincial laws are inconsistent with UNDRIP.

Eighteen months to remedy the Crown's breach of its constitutional obligations

Given the above, the Court held that the proper remedy was a declaration that the Province owes a duty to consult and that the CGC's conduct in establishing an online system allowing automatic registration of mineral claims in the Nations' territories – without prior consultation – breaches the Crown's obligations.

In accordance with the Province's request, however, the Court suspended the implementation of its declaration for 18 months to allow the Province to consult and design a regime (including, if necessary, amending legislation) that recognizes the rights of Indigenous Peoples and enables consultation. As a result, we can expect significant Indigenous consultation and stakeholder engagement over the coming year to remedy the faults identified by the Court. Meanwhile, heightened attention can be expected to be given to new and expiring claims before the pending policy / legislative amendments to BC's free entry mineral tenure regime.

Gowling WLG will continue to monitor and report on policy, legislative and judicial developments in regard to this important decision. Please contact any member of our Environmental or Indigenous Law groups if you would like assistance in understanding the implications of this decision on your rights and interests.

[1] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73

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