BC restricts mineral claims, mining in two First Nations territories

British Columbia has placed restrictions on mineral claim registrations and mining activities in two First Nation territories that successfully challenged the province’s Mineral Tenure Act in court, forcing B.C. to revamp the law.

In September, B.C.’s Supreme Court ruled that the province must consult with Indigenous groups before granting mineral claims, upholding the Crown’s duty. The ruling stemmed from an October 2021 legal challenge filed by the Gitxaała and Ehattesaht Nations.

The Gitxaała sought to annul multiple mineral claims that were granted between 2018 and 2020 on Banks Island, in their territory on B.C.’s northern coast.

The current law permits anyone with a free miner certificate to acquire mineral claims online through an automated system in First Nations’ territories, without their consultation or consent.

While the September ruling gave B.C. 18 months to reform the MTA and incorporate the duty to consult, the Gitxaała and Ehattesaht had remaining concerns that the impacts on their rights found by the court would continue while MTA reform was underway and until a new regime was in place.

The Nations filed appeals including requesting orders to quash specific mineral claims and prevent new claim registrations until a consultation regime is in place. They have agreed not to proceed with those aspects of their appeals in light of protective measures enacted by the province.

“This resolution demonstrates that meeting in person, government to government, allows us to develop solutions together, and I want to recognize and express my gratitude to Ehattesaht and Gitxaała for coming to the table with us to move forward the important work of reforming the Mineral Tenure Act,” Josie Osborne, Minister of Energy, Mines and Low Carbon Innovation said in a news release on Thursday.

“These interim measures mean that instead of ongoing litigation that could have far more significant and longer-term impacts to the sector, we are instead able to focus on our work together to reform the act,” she said.

The two Nations and the ministry have also agreed to support amendments to the interim orders if Ehattesaht or Gitxaała reach agreement with companies seeking to explore or mine in their territories.

“Gitxaała is ready to work with the province and other First Nations to ensure B.C. meets its commitment to establish a mineral tenure law that aligns with the United Nations Declaration on the Rights of Indigenous Peoples and respects Gitxaała laws,” Gitxaała-elected Chief Councillor Linda Innes said.

“The orders enacted by the province are an important step to begin this work together.”

November ruling

The judge found that the province owes a constitutional duty to consult with First Nations prior to registering mineral tenures under the MTA and that there are negative impacts to Gitxaała Nation’s and Ehattesaht First Nation’s territories and rights from registration of mineral claims.

The Gitxaała claimed they never consented to the claims, were not consulted, and were never notified of pending decisions. The lawsuit asked the province to invalidate existing claims and suspend staking in Gitxaala territory.