BC Supreme Court rules Mineral Tenure Act not addressing Indigenous consultation duty

First Nations leaders praised the British Columbia Supreme Court’s recent ruling that the province must consult with Indigenous groups before granting mineral claims, upholding the Crown’s duty to consult. The province’s miners welcomed the ruling too, seeing it as an opportunity to modernize the Mineral Tenure Act, ensuring the mineral claim staking process remains competitive, efficient, and respectful of Indigenous peoples’ rights. 

The court on Sept. 26 found that the way B.C.’s Chief Gold Commissioner has implemented the mineral claims process doesn’t meet the Crown’s duty to consult with Indigenous groups. The Gold Commissioner oversees the administration and regulation of mineral and placer mining claims, ensures compliance with relevant legislation, and manages disputes related to mining rights in the province. 

Critics have long challenged this system because it allows for the automatic registration of mineral claims without properly consulting First Nations. The industry argues it negates prospectors’ intellectual property by giving notice that it expects to find mineralization in a given area before any security of tenure is granted.

The Gitxaała Nation and Ehattesaht First Nation initiated the case, heard in April-May. They aimed to overturn several mineral claims the province sanctioned on Lax k’naga dzol (Banks Island) in Gitxaała territory, near Prince Rupert. These claims went forward without notifying, obtaining consent, or consulting the Gitxaała Nation. The current system automatically lets B.C. award mineral claims to miners through an online portal.

In his 148-page ruling, Justice Alan Ross rejected the Chief Gold Commissioner’s argument that it wasn’t feasible to consult Indigenous communities before granting mineral rights as “simply wrong.”

The court declared that the existing online system, which doesn’t include a consultation framework, violates the Crown’s constitutional obligations.

In response to the Court’s decision, Gitxaała Chief Councillor Linda Innes said, “The ruling confirms our long-standing position: B.C. must engage with Gitxaała and other Indigenous communities before granting mineral claims in our territories. The province must quickly correct its current approach, which dismisses our rights without consultation or consent.”

She added, “Although the Court suspended its declaration for 18 months, B.C.’s mineral tenure system needs immediate revision. We find it disappointing that the Court didn’t revoke the mineral claims we challenged, leaving our territory at risk for further mineral claims without adequate consultation.”

This verdict marks the first extensive legal review of B.C.’s Declaration on the Rights of Indigenous Peoples Act (commonly referred to as DRIPA). While the court didn’t comment on aligning the B.C. claim system with the UN Declaration, it emphasized DRIPA’s mandate to collaborate with Indigenous groups to align provincial laws with UNDRIP.

Commenting on the ruling, Gitxaała Sm’ooygit Nees Hiwaas (Matthew Hill) said, “B.C.’s mining regulations urgently need reform, a fact both the provincial government and the Court now recognize. We are concerned about the Court’s mild treatment of DRIPA in its decision, but this ruling unmistakably changes the status quo. Future reforms to B.C.’s mineral tenure system must align with UNDRIP – there’s no turning back.”

The B.C.-based Association for Mineral Exploration aknowledged the ruling for allowing the modernization of the Mineral Tenure Act while the mineral industry and Indigenous partners have clarity through 2024.

President and CEO Keerit Jutla emphasized in a statement the association’s goal “to ensure the mineral claim staking process remains competitive and efficient while respectful of the rights of Indigenous Peoples.”

Jutla also noted the Supreme Court’s decision not to order an injunction of the online registry used to grant mineral tenure rights and no change to the staking process for the next 18 months.

“We know there is an opportunity for a more inclusive process that provides shared benefit as we unlock the minerals and metals necessary for a low-carbon future.”

* The initial version of this article reported the B.C. Supreme Court declared the Mineral Tenure Act unlawful or unconstitutional. In summary, the Court rather, found that the way the Chief Gold Commissioner has implemented the mineral claims process does not meet the Crown’s duty of consultation, giving the province 18 months to modernize the act. The Court’s decision does not impact upon existing mineral claims in B.C., and the Court did not grant an injunction against the province relating to the staking of claims in the interim.