Environmental, Indigenous and Natural Resources Blog

The Supreme Court of British Columbia has given the Province (specifically, the Chief Gold Commissioner (“CGC”) – the decision-maker under the Mineral Tenure Act (“MTA”)) 18 months to design and implement a process that provides for consultation with Indigenous groups adversely affected by the system of issuing mineral claims under the MTA in their traditional territory. While the case focused on specific mineral claims in certain territories, the decision affects the online system that is used for automatically issuing MTA mineral claims throughout the province. However, the Court did not invalidate any mineral claims, and expressly stated “all mineral claims registered under the existing MTA system are valid.”

As discussed in more detail below, the following are some high-level takeaways from the decision:

• Using the Haida Test,^[1] the Court found that MTA mineral claims issued under the current system can cause adverse affects (spiritual, cultural, physical and economic) to First Nations and therefore a duty to consult under section 35 of the Constitution Act, 1982, is triggered.
• However, the MTA is not invalid as it provides the CGC with enough discretion and authority to implement a process that includes a consultation component.
• The Court made two findings with respect to the legal effect of the Declaration on the Rights of Indigenous People Act (“DRIPA”): (i) DRIPA does not implement the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) into domestic law in B.C.; and (ii) DRIPA does not create justiciable rights (i.e., it does not invoke the Courts to adjudicate instances where certain laws may be inconsistent with UNDRIP).

The Issue Before the Court

The MTA and B.C.’s automated process for issuing mineral claims online was the subject of a judicial review. The Petitioners (representatives acting on behalf of each the Gitxaala Nation and Ehattesahet First Nation) sought a declaration that the CGC’s conduct in establishing an online system allowing automatic registration of mineral claims in the Petitioners’ territories, without creating a system for consultation, breached the obligations of the Crown – namely, the Crown’s duty to consult First Nations under section 35 of the Constitution Act, 1982.

For context, the case involved the Petitioners’ (Gitxaala and Ehattesaht) asserted rights to certain territories, rather than rights that had been established in court or settled by treaty. They sought this declaration, among other forms of relief, in response to the presence of multiple mineral claims issued within territory in which they have asserted rights. The Court found that to uphold the “honour of the Crown,” in accordance with Canadian jurisprudence, the Province is required to protect such asserted interests until such time as these rights are resolved. It was under these circumstances that the Court reached its decision.

While there was no specific statutory provision of the MTA that was the subject of review, the Court reviewed the CGC’s exercise of discretion - specifically, the CGC’s decision to implement and oversee the online mineral claims registration process without providing for consultation prior to the issuance of mineral claims. Justice Ross categorized this as a series of “non-decisions” that occurred during the design stage of the system, for which there is no written record.

The Province’s position was that the registration of a mineral claim under the MTA is only a preliminary step in the regulatory scheme, and occurs at a very early stage of exploration. Permits under the Mines Act are needed to carry out mechanized exploration activities, and the process for issuing these permits includes Crown consultation with First Nations. In addition, commercial production is not allowed on a mineral claim until a mining lease has been issued under the MTA. The CGC conducts consultation before issuing a mining lease. This was, in part, the reason why the CGC decided to draw the line for consultation at the permitting and leasing stages as opposed to registration of mineral claims.

The Test for Determining Whether a Duty to Consult is Owed

The test for determining whether a duty to consult is owed was set out by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (“Haida”). The test is broken-down into three elements:

1. The Crown has knowledge of a potential Aboriginal claim or right;
2. There is contemplated Crown conduct; and
3. Such Crown conduct may adversely affect an Aboriginal claim or right.

The Province agreed that the first two elements of the Haida Test were established – (i) the Crown had knowledge of the asserted claims to the territories, and (ii) the Crown designed and implemented a system for granting mineral claims without consultation, which constitutes “Crown conduct.”

The core issue of the case relates to the third element of the Haida Test – whether the operation of the current mineral tenure system adversely affects an Aboriginal claim or right.

What is the Adverse Affect of a Mineral Claim under the MTA?

The Province argued that the rights granted to recorded holders of mineral claims under the MTA are very limited and do not cause any adverse affects. Recorded holders are generally limited to using “hand tools” unless they obtain a permit. Therefore the Province argued that the threshold of permissible activity is limited to causing “nil or negligible disturbance” to the claim area.

However, the Court found that the granting of the mineral claims at issue had multiple adverse affects on the Petitioners’ asserted rights: cultural and spiritual impacts as well as physical and economic impacts. The Court found the following to be adverse affects on the Petitioners’ asserted rights, for the purpose of the Haida Test:

1. Cultural and Spiritual Impacts

Issuing mineral claims (without consultation) may have adverse impacts on places of cultural or spiritual significance. The Court cited the following examples:

1. Areas containing crystals, which are sacred to Ehattesaht;
2. The Ksgaxlam, the place of the mountain where crayon (coloured chalk or marker) is found and has been used by Gitxaala to create paints and markings; and
3. Areas in Gitxaala territory where Naxnanox (nature spirits) have supernatural “dens.”

The Court emphasized that the concept of “adverse impacts” must be viewed through the lens of the First Nation. Exploration activity that the Province may view as causing nil or negligible disturbance to the land may nonetheless have a significant adverse impact on a First Nation’s spiritual beliefs and cultural practices if it occurs in a place of cultural or spiritual significance.

2. Physical and Economic Impacts

• Loss of minerals: the physical removal of minerals from the land permanently reduces the land’s value, resulting in an irreversible reduction in the value of the territory, and thus an adverse affect on asserted Aboriginal rights and title.
• Loss of mineral rights: the transfer of mineral rights to third parties – even if it is a personal property interest – impacts asserted mineral rights.
• Loss of financial benefit: the exclusive right to explore for minerals in an area provides a financial benefit by enabling the mineral claim holder to raise capital for mineral exploration; the First Nation is deprived of this economic opportunity.
• Disturbance of lands: the physical disturbance to the lands allowed as part of the rights under a mineral claim is more than “nil or negligible” when viewed from the Indigenous perspective.

The Petitioners also argued that there were “legal order impacts” and “decision-making and governance impacts” arising from the issuance of the mineral claims. However, the Court found that these alleged infringements are not adverse impacts for the purpose of the Haida Test.

Nature of the Breach of the Duty to Consult

Having found that the Crown’s duty to consult was triggered at the mineral claim registration stage, and that the Crown breached this duty, the Court proceeded to determine whether the MTA is unconstitutional, or whether it provides the necessary authority and discretion to facilitate pre-registration consultation.

The Court considered the text, purpose and context of the MTA, as well as the intent of the legislature in amending the Interpretation Act of B.C. to require every Act and regulation to be construed as being consistent with the Declaration on the Rights of Indigenous People Act (B.C.) (“DRIPA”).^[2] The Court found several discretionary powers available under the MTA that provide the appropriate authority and discretion to implement pre-registration consultation. Therefore the Court found that there was no reason to declare the MTA to be constitutionally invalid; rather, the CGC failed to properly implement the MTA. The Court acknowledged that the online registration system for mineral claims was designed before the Haida decision was issued, therefore the CGC could not have anticipated the Haida Test when the online system was developed.

The Court’s Declaration

The Petitioners sought, and the Court granted, a declaration that “the CGC’s conduct in establishing an online system allowing automatic registration of mineral claims in their territories, without creating a system for consultation, breaches the obligations of the Crown.” Furthermore, because the Court considers the nature of the issue to be “systemic,” it therefore granted the declaration regarding the obligations of the CGC throughout the province.

The parties had agreed that if the court found a breach of the duty to consult, then the decision on any “measures” to remedy the breach should be left to the Province. Accordingly, the Court did not direct the CGC or the Province as to what changes should be implemented. Rather, the Court suspended the declaration for 18 months in order to allow for the design and implementation of a pre-registration consultation program.

UN Declaration on the Rights of Indigenous People (UNDRIP)

The Petitioners sought an additional declaration that the current process for granting mineral titles under the MTA is inconsistent with UNDRIP. However, the Court did not make this declaration.

The Court made two findings regarding the legal effect of DRIPA:

1. DRIPA does not implement UNDRIP into domestic law

The BC Human Rights Commissioner (an intervenor in the proceeding) argued that DRIPA implements UNDRIP into domestic law, as s. 2 of DRIPA affirms the application of UNDRIP to the laws of B.C. The Court found instead that DRIPA contemplates a process wherein the province, in consultation and cooperation with Indigenous peoples in B.C., will prepare and carry out an action plan to address the objectives of UNDRIP.

2. DRIPA does not create justiciable rights

The question was whether judicial intervention is suitable to ensure that, in accordance with s. 3 of DRIPA, the government takes all measures necessary to ensure that the laws of B.C. are consistent with UNDRIP. The Court found that this provision is a direction made to the executive branch of government. It establishes a forward-looking framework for cooperation between government and Indigenous peoples. It was not intended for invoking the courts to adjudicate instances where laws may be inconsistent with UNDRIP.

Injunctive Relief not Granted

The Petitioners sought various injunctions to prevent the registration or renewal of mineral claims, without consultation, in the territories where the Petitioners assert aboriginal rights or title. The court did not grant the injunctions, finding instead that the declaratory relief was sufficient.

The Status of MTA Claims following this Decision

The Court declined to quash (extinguish) the specific mineral claims that were identified by the Petitioners as problematic. The Province argued that the mineral claims should not be quashed because, among other things, the de facto doctrine protects third-party interests acquired under a presumptively valid regulatory scheme. The Court agreed that the de facto doctrine applies here, and that it would not be appropriate to quash the mineral claims.

The Court was also concerned that quashing the identified claims could call into question the validity of other mineral claims. The Court expressly stated that it has made no order that affects the validity of any existing mineral claims, and that mineral claims registered under the existing system are valid.

If you have questions about this case or the system for issuing mineral claims in B.C., please contact one of our authors Jennifer Nyland or Ben Westerterp. 

^{[1] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.}

^{[2] Interpretation Act, s. 8(1)}