The Province of British Columbia’s “free entry” mineral tenure regime, which allows the holder of a free miner certificate to acquire mineral claims issued by the provincial government, is the subject of a recent court challenge brought by the Gitxaala First Nation in the British Columbia Supreme Court. The Gitxaala allege that the current mineral tenure regime violates the provincial Crown’s constitutional obligation to consult prior to disposing of any interest on lands where the Gitxaala has asserted Aboriginal rights and title, as well as the Province’s commitment to implement the United Nations’ Declaration on the Rights of Indigenous Peoples. The Court began hearing arguments in the Gitxaala Nation’s ground-breaking legal challenge on April 3, 2023.
Overview of the legislative framework
The legislative framework governing mineral exploration and mining in British Columbia includes a number of statutes, including the British Columbia Mineral Tenure Act, and the British Columbia Mines Act.
The Mineral Tenure Act governs the acquisition of an entitlement to minerals held by the provincial government on certain “mineral lands,” which includes provincial government land and private land where mineral rights have been reserved to the government. Under this system, which has been in place since the gold rush era, a person who holds a free miner certificate is able to acquire mineral claims on mineral lands without requiring the consent of the government or landowner. Once acquired, a mineral claim represents certain limited rights to access the lands and explore for minerals with or without the permission from third parties who may be affected, including Indigenous groups and owners of surface rights. This process of mineral claim acquisition, commonly referred to as the “free entry” system, was designed to encourage mining activity by setting a lower barrier to entry for persons considering future mineral exploration and development, and was implemented by the Province to effectively manage and exploit its vast and underexplored resource potential.
While a mineral claim provides the holder with certain limited rights to minerals that may or may not be present, it does not permit the claim holder to cause any material disturbance to the lands or to develop and operate a mine. Rather, the mineral claim represents a mere chattel interest in the minerals which, with limited exceptions, remain under government control. Without additional permits, a claim holder is restricted to carrying out low-impact, non-mechanized activities such as airborne geophysical surveying, geological and geochemical sampling, and excavation of small-scale pits and trenches using hand-held tools, and baseline data acquisition, such as mapping, taking photos and measuring water quality.
The Mines Act is the principal statute regulating mining activities through the lifecycle of a mine in British Columbia, through initial exploration to development and operations and, ultimately, to closure and reclamation. Section 10 of the Mines Act requires that a permit is required before “starting any work in, on or about a mine.” The process to obtain such a Mines Act permit to conduct any impactful exploration or operations includes requirements, proportionate to the proposed mining-related activity, for consultation with and permission from third parties whose interests may be affected, including Indigenous groups. If and when the potential impact of the proposed mining activity increases, a project proponent will face a correspondingly more intensive regulatory regime, requiring extensive third-party consultations informed by detailed engineering studies and consideration of all material environmental, cultural, community and economic impacts. In addition to the Mines Act, mineral exploration and mine development are subject to the requirements of other legislation applicable to the proposed activities, including the Environmental Assessment Act, Environmental Management Act, Heritage Conservation Act, Water Sustainability Act, Land Act, Forest Act and Wildlife Act.
Background to the Gitxaala claim
In 2018 and 2020, the Province’s Chief Gold Commissioner, without consultation with the Gitxaala Nation, registered several mineral claims over lands on Banks Island, British Columbia – i.e., lands the Gitxaala claim they have exclusively owned, occupied, governed, managed and harvested for over thousands of years. The Gitxaala have asserted Aboriginal rights, including rights of governance, harvesting and Aboriginal title to this area, and, as a result, argue they are entitled to the exclusive possession, use and control of minerals, as well as the rights to hunt, trap, harvest resources and uphold their laws over these lands.
In this challenge to British Columbia’s “free entry” mineral tenure system, the Gitxaala’s position is that the provincial government has failed to make it a precondition to accepting and registering mineral claims that consultations takes place with Indigenous peoples regarding their territorial lands, or other lands where Indigenous peoples have asserted Aboriginal rights and title. In particular, the Gitxaala claim the provincial government has a duty to consult before granting mineral claims on lands over which the Gitxaala have asserted Aboriginal title.
Orders sought in the proceeding
In addition to other declarations regarding the conduct of the provincial government, the Gitxaala are seeking to quash or set aside the Banks Island mineral claims, together with an order directing the Province’s Chief Gold Commissioner to discontinue or suspend the operational functions of the mineral titles registry concerning the granting of mineral claims without consultation.
The Province’s response
In the Province’s response, which opposes all the orders sought by the Gitxaala, the government asserts the system for registration of mineral claims is consistent with its obligations under Section 35 of Canada’s Constitution Act, 1982, and the principles guiding the conduct of the Crown in its dealings with Indigenous peoples. The government acknowledges that it has a duty to consult and accommodate Indigenous groups before Aboriginal rights are infringed, and admits it has knowledge of the potential existence of the Aboriginal rights of the Gitxaala, including asserted Aboriginal rights and title in relation to Banks Island.
In brief, the principal legal issue in the proceeding is whether the registration of a mineral claim in and of itself triggers the duty to consult and accommodate affected Indigenous groups. Canadian case law has established that the duty to consult arises whenever the government is contemplating a decision or action that has the potential to adversely affect asserted or established Aboriginal or treaty rights. When triggered, the duty to consult (and accommodate where appropriate), is a process that requires collaboratively working together to find a compromise that balances the conflicting interests at issue, in a manner that minimally impairs any Aboriginal right.
The position of the provincial government is that the registration of a mineral claim does not in itself have any adverse impacts on Aboriginal rights, and Mines Act permitting (which includes consultation with and permission from Indigenous groups whose interests may be affected) is required before the occurrence of impactful mining activity. Since in some instances, the accommodation of Aboriginal interests may mean the denial of applications for Mines Act permits and other required provincial authorizations, the provincial government has argued that the conduct of the government in this case is consistent with the Province’s duty to consult.
Conclusion
The Gitxaala’s legal challenge to the Province’s mineral tenure regime is an example of the ongoing tension between the rights of Indigenous peoples and government decisions associated with resource development activities in British Columbia. The outcome of this case may have significant implications, both for Indigenous groups, and for mining companies operating within the Province, including the process for acquiring new mineral claims, and the interests of private parties in existing mineral tenures.
For more information on this topic, please contact Robin Longe and David Hunter.
