In Gitxaala v. British Columbia, the British Columbia Supreme Court ruled that the issuance of mineral claims in British Columbia triggers the Crown’s duty to consult Indigenous nations. The Court suspended its declaration for 18 months, giving the province time to design and implement a new system that includes Indigenous consultation. During this period, the current tenure system and existing mineral claims remain valid.

Background to the Decision

The decision arose from two petitions brought by the Gitxaala Nation (Gitxaala) and the Ehattesahet First Nation (Ehattesahet). Gitxaala and Ehattesahet sought a declaration that the mineral tenure system authorized by the Mineral Tenure Act and administered by the Chief Gold Commissioner (Commissioner) operates in a manner contrary to the Crown’s duty to consult. The focus of their complaint was that the province’s online, automated registration system allows anyone to obtain mineral claims with no notice of the registration to, or consultation with, Indigenous nations.

The legal issue before the Court was whether the province has a constitutional obligation to consult with Indigenous groups prior to the registration of mineral claims. Importantly, the Court was not tasked with deciding:

1. The scope or content of the duty to consult. The only issue was whether the duty to consult was triggered by the granting of mineral claims.

2. The validity of existing mining rights.

Current Mineral Claim Registration System

Since 2004, the province has operated an online, automated registration system for mineral titles. Although the system notifies free miners when Indigenous nations have asserted Aboriginal rights that overlap with their newly acquired mineral claim, the mineral claims are granted automatically.

A mineral claim allows limited exploration activities. Most exploration activities require further permits or land tenures, which are subject to consultation with potentially affected Indigenous nations.

Court Decision and Key Findings

All parties agreed the first two elements of the test for determining whether the Crown owes a duty to consult were met:

1. The province is aware of Gitxaala’s and Ehattesahet’s asserted claims to territory, and

2. Granting mineral claims is a form of Crown conduct. Instead, the Court focused its analysis on whether the granting of mineral claims may adversely affect an Aboriginal claim or right.

Against this backdrop, the following key points arose from the decision:

1. The provincial Crown has a duty to consult Indigenous peoples when granting mineral claims. Although the physical disturbance authorized by the granting of mineral claims under the Mineral Tenure Act is limited, it has the potential to cause adverse impacts upon areas of cultural and spiritual importance and the rights of Indigenous nations to receive financial benefits from the minerals in their asserted territories. This potential impact is sufficient to trigger the duty to consult. The Court acknowledged the uncertainty in the law as to whether Aboriginal title includes subsurface rights, as the First Nations asserted. The Court did not determine this issue, other than concluding the asserted rights were sufficient to trigger consultation.

2. The Mineral Tenure Act is valid legislation and does not inherently infringe upon the section 35 rights of Indigenous peoples. It is the Commissioner’s decision to implement a system which allocates mineral claims without consultation that breaches the Crown’s duty to consult.

3. The Court’s declaration is not immediate. The Court has suspended its declaration for 18 months to allow the province to consult with Indigenous nations and design a system for allocating mineral claims that facilitates appropriate consultation. The province has discretion in revising the system, whether through operational changes at the Commissioner level, or amending the Mineral Tenure Act.

4. During this period, the province can continue to operate the existing automated registration system. The Court declined to grant an injunction prohibiting the registration of new mineral claims or the renewal of existing mineral claims, expressing concern that it would have unintended and unforeseen impacts on recorded holders of mineral claims who were not parties to the litigation.

5. The Court was invited to consider the legal effect of The Declaration on the Rights of Indigenous Peoples Act (DRIPA), which was adopted by the province in 2019. The Court concluded DRIPA does not incorporate the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into domestic law or create justiciable rights. DRIPA can be used as an aid in interpreting legislation, including the Mineral Tenure Act.

6. The decision does not affect the rights of recorded holders of existing mineral claims or other mining authorizations.

Implications

The Court decision does not immediately impact mineral exploration activities in the province, but in consultation with Indigenous nations, gives it a relatively limited timeline to modernize the mineral tenure regime.

The 18-month timeline will require an appropriate balancing of interests given existing precedent. In 2012, the Yukon Court of Appeal similarly concluded the issuance of mineral claims under Yukon legislation triggered the duty to consult. As a result of that case, a staking ban has been in place in 23% of the Yukon, pending consultations. British Columbia was already aware of this issue, and included the modernization of the Mineral Tenure Act, in consultation with First Nations, as a stated goal in its 2022 DRIPA Action Plan. The Court has now ordered the province to achieve that goal within 18 months.

Mining industry participants, Indigenous peoples and other provincial and territorial governments across Canada will closely watch how the province implements the court order. Given that Aboriginal law is fundamentally national (based on section 35 of the Constitution Act, 1982), “free entry” mineral tenure systems in other Canadian jurisdictions that grant rights without Indigenous consultation may also be subject to future challenge.