Gitxaala v British Columbia: B.C. mineral claim system breaches the duty to consult

Aboriginal Law | Aboriginal Rights | DRIPA | Duty to Consult | UNDRIP

Gitxaała Nation and Ehattesaht First Nation are celebrating a win in their legal challenge of British Columbia’s free entry mineral claim system. The British Columbia Supreme Court ruled in favour of the First Nations this week, in Gitxaała v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 – published here.

The case is an important win because the court declared that B.C.’s current online mineral claim system breaches the Crown’s duty to consult. The court gave B.C. 18 months to design a new system that incorporates consultation. This decision may be helpful for other Indigenous peoples looking to challenge similar mining systems in other provinces. It will likely be appealed, and is a case to keep watching.

OKT lawyers Larry Innes, Kevin Hille, Corey Shefman and Jesse Abell represented interveners First Tellurium Corp. and Kingston Geosciences Ltd., who intervened in the case to support Gitxaała and Ehattesaht. First Tellurium and Kingston are a mineral exploration company and consultancy that oppose B.C.’s free entry regime, and support a system that requires Indigenous peoples’ consent before claims can be registered.

The issue

Gitxaała and Ehattesaht requested that the court declare that B.C.’s mineral registration system, by allowing claims to be automatically registered without Indigenous consultation, breaches the Crown’s duty to consult. They also applied for declarations that the system is inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and B.C.’s Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c 44 (“DRIPA”). Gitxaała and Ehattesaht also requested injunctions to prevent registration of further mineral claims until a consultation system is put in place, and the quashing of specific mineral claims.

Background on B.C.’s mineral tenure regime

B.C.’s mineral claim system is regulated under the Mineral Tenure Act, RSB.C. 1996, c. 292 (“MTA”) and regulations. Under the system, any person with a free miner certificate (based only on technical compliance with registration and paying a fee) can register a mineral claim online. By registering a mineral claim, the claim holder gets the exclusive right to own the minerals covered by the claim, the right to use, enter or occupy the surface claim area for exploration, the right to extract ore up to a certain amount without a permit, and the right to convert it into a long-term lease. There is no notification or consultation with affected Indigenous peoples when a mineral claim is registered. Consultation only happens at the later permitting stages.

The decision

The court found that B.C.’s system of issuing mineral claims triggers the duty to consult, and that B.C.’s Chief Gold Commissioner (“Commissioner”) breached the duty to consult by failing to properly implement the MTA to create a structure for consultation. The court found that the Commissioner’s position, that it did not have discretion to consult with Indigenous groups, was “simply wrong”.1

However, the court found that the MTA itself is constitutionally valid. The MTA gives the Commissioner discretion to create a consultation structure, but the Commissioner did not do so.

The court also held that DRIPA does not implement UNDRIP into the domestic law of B.C., and DRIPA does not require the court to interpret whether the laws of B.C. are “consistent” with UNDRIP.

The court issued a suspended declaration that the Commissioner’s conduct, by establishing a system for registering mineral claims without consultation, breached the duty to consult. The court suspended the declaration for 18 months to give B.C. time to implement a consultation program. The court dismissed the injunction applications, and the applications to quash specific claims. All existing mineral claims in the province remain valid.

Looking forward

This case is an important step forward for Indigenous peoples fighting for amendments to B.C.’s mineral claim system. Although all existing mineral claims remain valid, the decision indicates that an immediate overhaul to the system is required. The court observed, “The province, First Nations, and the mineral exploration industry will be here. The goal is to develop a mineral tenure system that recognizes the rights of BC’s Indigenous people.”2

The case is also the first to consider the effect of B.C.’s DRIPA. While the court held that DRIPA does not implement UNDRIP into B.C. law, the court emphasized that DRIPA contemplates B.C. consulting with Indigenous peoples to carry out a plan to address UNDRIP.

Tony Fogarassy, the chairperson of First Tellurium, commented on the decision:

“Sustainable and responsible mineral exploration, mining and processing is required in a modern, progressive 21st century world. We believe the UN Declaration’s fundamental proposition of free, prior and informed consent must be at the heart of all mineral tenuring and mining activities. The requirement for Crown consultation with impacted Indigenous peoples prior to the registration of mineral claims in British Columbia is a first, and highly symbolic, step to bring 19th century mining legislation, that even today continues to exist in full force and effect, into the 21st century. We commend the Gitxaała Nation and Ehattesaht First Nation for their tireless efforts notwithstanding a skewed colonial judicial and legislative system that continues to disadvantage Indigenous peoples at every turn.”

1. Gitxaała v British Columbia (Chief Gold Commissioner), 2023 B.C.SC 1680, at para. 427.
2. Gitxaała v British Columbia (Chief Gold Commissioner), 2023 B.C.SC 1680, at para. 558.

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