Indigenous groups and the mining industry praised the British Columbia Supreme Court鈥檚 ruling that the province must consult with Indigenous groups before granting mineral claims, upholding the Crown鈥檚 duty to these communities.
The court on Tuesday gave the provincial government 18 months to聽consult with Indigenous groups and the minerals industry聽to modernize the mineral tenure system in a way that accounts for the Crown鈥檚 duty to consult. The province has discretion in addressing the required modernization. The Court recognized that the province could change the manner in which the聽act is implemented by the Chief Gold Commissioner or change the legislation.
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鈥� intellectual property by giving notice that it expects to find mineralization in a given area before any security of tenure is granted.
The Gitxaa艂a 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鈥檔aga dzol (Banks Island) in Gitxaa艂a territory, near Prince Rupert. These claims went forward without notifying, obtaining consent, or consulting the Gitxaa艂a Nation. The current system automatically lets BC award mineral claims to miners through an online portal.
In his 148-page ruling, Justice Alan Ross rejected the Chief Gold Commissioner鈥檚 argument that it wasn鈥檛 feasible to consult Indigenous communities before granting mineral rights as 鈥渟imply wrong.鈥�
The Court declared that the existing online system, which doesn鈥檛 include a consultation framework, violates the Crown鈥檚 constitutional obligations.
In response to the Court鈥檚 decision, Gitxaa艂a Chief Councillor Linda Innes said, 鈥淭he ruling confirms our long-standing position: BC must engage with Gitxaa艂a 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.鈥�
She added, 鈥淎lthough the Court suspended its declaration for 18 months, BC鈥檚 mineral tenure system needs immediate revision. We find it disappointing that the Court didn鈥檛 revoke the mineral claims we challenged, leaving our territory at risk for further mineral claims without adequate consultation.鈥�
This verdict marks the first extensive legal review of BC鈥檚 Declaration on the Rights of Indigenous Peoples Act (commonly referred to as DRIPA). While the court didn鈥檛 comment on aligning the BC claim system with the UN Declaration, it emphasized DRIPA鈥檚 mandate to collaborate with Indigenous groups to align provincial laws with UNDRIP.
Commenting on the ruling, Gitxaa艂a Sm鈥檕oygit Nees Hiwaas (Matthew Hill) said, 鈥淏C鈥檚 mining regulations urgently need reform, a fact both the provincial government and the Court now recognize. We are concerned about the Court鈥檚 mild treatment of DRIPA in its decision, but this ruling unmistakably changes the status quo. Future reforms to BC鈥檚 mineral tenure system must align with UNDRIP 鈥� there鈥檚 no turning back.鈥�
The BC-based Association for Mineral Exploration acknowledged 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鈥檚 goal 鈥渢o ensure the mineral claim staking process remains competitive and efficient while respectful of the rights of Indigenous Peoples.鈥�
Jutla also noted the Supreme Court鈥檚 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.
鈥淲e 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.鈥�
* The initial version of this article reported the BC 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鈥檚 duty of consultation, giving the province 18 months to modernize the act. The Court鈥檚 decision does not impact upon existing mineral claims in BC, and the Court did not grant an injunction against the province relating to the staking of claims in the interim.聽