BC’s new Mineral Claim System Seeks to Balance Indigenous Rights with Resource Development

Introduction

British Columbia is set to introduce sweeping changes to its mineral claim system in response to a court ruling which found that the current system failed to accommodate Indigenous rights.

The new system seeks to promote reconciliation by implementing a pre-claim consultation process with First Nations whose traditional territories overlap with areas of mineral potential. However, it remains to be seen whether stakeholders will welcome the proposed changes, which are expected to introduce significant administrative, financial, and legal burdens for all stakeholders.

This article explores the key issues for First Nations and mining companies arising from the changes.

Background

In Fall 2023, the Supreme Court of British Columbia found that the current mineral claim system was in breach of the duty to consult and ordered the BC Government to overhaul the system by March 26, 2025. The duty to consult is 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.

Under the current system, a proponent can register a claim over an area of land through BC’s online Mineral Titles Online platform. Registering a claim does not grant the proponent any land ownership or mineral rights—but it does grant the exclusive right to do early-stage exploration in the area claimed. These minimally invasive exploration activities could include soil sampling, rock sampling, or setting up temporary work stations such as remote camps.

This system was found to be non-compliant because it allowed mineral exploration proponents to register claims without informing or consulting with Indigenous peoples whose traditional territories overlapped with the area covered by those claims. For a detailed summary of the court ruling, see our previous article: Recent Supreme Court Decision Changes Mineral Claim System in BC.

The changes to the Mineral Claim system will be implemented on March 26 through the Government’s new Mineral Claims Consultation Framework (the “Framework“).  More details on the Framework can be found here.

New System: Claims Will Be Subject to Referral and Consultation with First Nations

As of March 26, when a prospector submits a claim through BC’s Mineral Titles Online platform, the claim will no longer be automatically registered. Instead, the submission will trigger a review process during which the Government will review the materials, prepare a referral package for First Nations, and engage in a consultation and accommodation process, during which time the claim will be pending.

If First Nations do not respond to the referral within 30 days, the claim will be granted, and the prospector will be free to conduct early-stage, “non-invasive” exploration activities. If First Nations do respond, an additional 30-60 consultation will either result in the claim being denied or approved subject to accommodation measures.

The potential for claims to be denied has caused concerns that the new process may effectively close off large portions of the province to mineral exploration.

Concern: Administrative and Financial Burden

The new system is less favourable for prospectors and mining companies because of the increased uncertainty over their mineral claims and administrative delays involved in processing them. Further, it remains to be seen whether these measures will actually be welcomed by the First Nations, who will now become inundated with yet more government referrals to deal with.

In areas with high mineral potential, First Nations could face hundreds or even thousands of new claim referrals. Given this potential for a high volume of claims and their technical nature, a significant concern is whether First Nations will have the necessary administrative, financial, or legal resources to effectively manage this process.

A similar concern is whether the province will administer the claims efficiently and without undue delay. In areas with overlapping First Nation territories, multiple Nations may need to be consulted for a single claim. In some cases, dozens of overlapping First Nation territories could be involved within a certain claim area in the province.

Concern: Intellectual Property

Mining companies are concerned that the new system may result in the disclosure of important trade secrets and proprietary information belonging to the claim applicants. Mineral claims are considered a form of intellectual property because of the significant amount of research, preparation, and technical know-how that goes into identifying a claim area and submitting a claim. The new Framework poses a risk that this proprietary information will become public. Further, if a claim is rejected through the new Framework, the applicant’s proprietary information could be accessed and exploited by another entity to advance the same claim through a subsequent application.

Key Takeaways

It remains to be seen whether BC’s new mineral claim system will successfully balance Indigenous reconciliation with fairness to project proponents while promoting sustainable resource development in the province.

At this critical juncture, the new system is poised to increase costs and administrative burden for all parties, including First Nations, project proponents, government, and taxpayers. Many stakeholders are concerned that the new system will cripple resource development in British Columbia as investors and project proponents abandon the province in favour of other jurisdictions with less regulatory uncertainty.

Our natural resource team is closely monitoring the Framework’s implementation in BC and will continue to report on important developments as they evolve. We expect one such development to be an amendment to the Mineral Tenure Act, RSBC 1996, c 292 in the near future.

For more information on various questions of Indigenous law, as well as mining or resource development law, please contact Jimmy Burg.