Judge finds province has duty to consult First Nations on mineral tenure claims

Mineral rights

Members of the Gitxaala Nation, including Chief Councillor Linda Innes, front right, march to B.C. Supreme Court in Vancouver in April. Photo: Darryl Dyck/The Canadian Press.

A British Columbia Supreme Court judge has given the province 18 months to fix its mineral rights system after a court challenge by First Nations who are owed a duty to consult under the Constitution.

In October 2021, the Gitxaala Nation filed a petition challenging the province’s online mineral tenure registry, which automatically granted mineral rights on its territory without consultation.

The Ehattesaht First Nation filed a similar petition in June 2022, and the B.C. Supreme Court heard the cases together this spring.

The court’s ruling released Tuesday says the B.C. government claimed in court that the system did not “create adverse impacts” great enough to trigger a constitutionally mandated duty to consult First Nations.

The nation’s original court petition not only sought to change the system but also wanted the court to quash specific mineral claims granted on territory where it asserts Aboriginal rights and title, which was rejected.

However, Justice Alan Ross found the province’s Chief Gold Commissioner was “simply wrong” to claim that it wasn’t in their power to consult with First Nations on granting mineral rights.

The nation claimed the lack of consultation for mining rights on its lands was inconsistent with the Constitution and both the B.C. government’s Declaration on the Rights of Indigenous Peoples Act, and the UN Declaration on the Rights of Indigenous Peoples.

The provincial government, however, told the court that B.C.’s adoption of the UN’s declaration didn’t actually bring it into law that could be enforced in court, but only set out the government’s“ commitment to reconciliation.”

Ross says in his ruling that the case was, to his knowledge, “the first judicial consideration of the legal effect” of B.C.’s Declaration Act.

He found that the First Nations were not entitled to any court-granted relief under the UN declaration or B.C.’s legislation that adopted it.

The decision says the case would likely be the “first of many opportunities” for the courts to consider them, adding that he expects the legislation and courts’ interpretation of it would “develop over time.”

Ross found the Mineral Tenure Act grants the power to restrict mining rights “in areas of cultural significance to Aboriginal people.”

“It stands to reason that the (Chief Gold Commissioner) could only learn of the existence of those areas of cultural significance through consultation,” Ross’ ruling states.

Gitxaa?a Chief Councillor Linda Innes said in a statement Tuesday that the nation “knew all along” that the province was duty-bound to consult Indigenous Peoples about mineral claims on their territories.

“The provincial government must now act quickly to eliminate its unjust practice of selling off our rights without our consultation or consent,” she said.

Despite the court victory, Innes said since the court suspended its ruling for 18 months, and didn’t quash existing mineral claims, the court left “our territory open for continued mineral claims staking without consultation for the time being.”

B.C. Human Rights Commissioner Kasari Govender, who intervened in the case, said she was disappointed that the court found no legal force in the province’s Declaration Act, which “undermines” the legislation’s role in provincial reconciliation and decolonization efforts.

“The Declaration Act should not be merely symbolic, yet today’s decision indicates that the UN Declaration on the Rights of Indigenous People still does not have the force of law in B.C.,” Govender said in a statement Tuesday.

Justice Ross ruled that the “goal is to develop a mineral tenure system that recognizes the rights of B.C.’s Indigenous people.”

“My hope is that goal can be achieved in the 18 months I have set aside for that purpose,” Ross ruled.

A statement from Keerit Jutla, the president of the Association of Mineral Exploration, said the 18 months granted by the court will allow for the modernization of the Mineral Tenure Act while the industry has clarity through to 2024.

“Our goal is to ensure the mineral claim staking process remains competitive and efficient while respectful of the rights of Indigenous Peoples,” Jutla said.

“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.”

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