On September 26, the B.C. Supreme Court ruled (2023 BCSC 1680) the province’s current mineral claim system is in breach of the duty to consult, a constitutionally protected duty that requires all levels of Canadian governments to consult with Indigenous Peoples prior to engaging in conduct which may adversely impact Indigenous rights or title.
This ruling does not affect any currently approved mines in the province, but has significant implications for First Nations, as well as mining proponents and the larger resource development industry moving forward.
Praised by several Indigenous and mining industry groups, the 148-page decision delves into the overlapping complexities of several legal regimes and frameworks, including the Mineral Tenure Act, the common law governing the duty to consult, and the Declaration on the Rights of Indigenous Peoples Act (DRIPA).
The duty to consult is a legal duty that applies to Canadian governments when they contemplate conduct that may adversely impact an Indigenous right or title. When such conduct is contemplated, the Crown must ensure that the respective Indigenous communities are adequately consulted before engaging in the conduct.
In the ruling, the court found that the province’s current mineral claim system, which allows proponents to register mineral claims (and subsequently engage in mineral exploration activities in the area of the claim) in British Columbia through an online portal, does constitute government conduct which may adversely impact Indigenous rights or title. Therefore, the duty to consult is engaged, and the fact that proponents can stake a claim without consultation is a breach of the duty.
Distilling this complex ruling into simpler concepts, the court held:
The Province was ordered to overhaul the online approval system within 18-months, during which time the current system will remain in place.
While the ruling provided some clarity for various parties—both directly and indirectly involved—it did raise questions about the strength of the Province’s DRIPA legislation and its alignment with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). These questions raise important implications for the future applications of this legislation.
For more information on various questions of Indigenous law, as well as mining or resource development law, please contact Jimmy Burg.