The recent decision of the British Columbia Supreme Court in Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 ("Gitxaala"), is an important decision for the minerals exploration and development industry in British Columbia.

The Court has ruled that the Province must modernize the operation of the Mineral Tenure Act to allow for some consultation in advance of staking claims, but has provided the Province with time to do so in a manner that supports the minerals industry and Indigenous rights in British Columbia.

This bulletin provides a brief summary of the key points from the judgement, with a more in depth analysis of the reasons for decision to follow in a future bulletin.

What Are the Key Points From the Judgment?

  • The Court found that the Crown (the Government of British Columbia) owes a duty to consult Indigenous Peoples with asserted rights and title. The current practice of granting of mineral claims without consultation with Indigenous Peoples is contrary to this duty.
  • The Court granted the Province 18 months to consult with Indigenous Peoples and the minerals industry, in order to modernize the mineral tenure system in a way that accounts for the Crown's duty to consult. The province has discretion in addressing the required modernization. The Court recognized that the Province could change the manner in which the Mineral Tenure Act is implemented by the Chief Gold Commissioner, or change the legislation itself. In the interim, the present system is operable.
  • The Court did NOT find the Mineral Tenure Act to be unconstitutional. Rather, it found that the way the Chief Gold Commissioner has implemented the mineral claims process does not meet the Crown's duty of consultation.
  • The Court's decision does NOT impact upon existing mineral claims in British Columbia. All mineral claims that have been staked throughout the Province (whether through the Mineral Tenure Online system, pre-existing Crown grants, or through physical staking prior to the advent of the MTO system) are validly staked and are not reversed or impacted by the Court's reasons.
  • The Court did NOT grant an injunction against the Province relating to the staking of claims in the interim. During the period of consultation regarding modernization, the Province may continue to grant mineral claims (or continue existing mineral claims through the registration of work) under the MTO system as it currently operates.
  • The UN Declaration on the Rights of Indigenous Peoples is NOT enforceable as law in British Columbia. The B.C. legislation regarding the Declaration, the Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44 was found to be a guide for a process whereby the Province, "in consultation and cooperation with the Indigenous peoples in British Columbia" will prepare, and then carry out, an action plan to address the objectives of the Declaration. The Court did, however, use the Declaration as part of its interpretation of the meaning of the Mineral Tenure Act.

What Does This Mean for the Mineral Industry Today?

The Gitxaala decision does not immediately impact upon the practices of mineral exploration in the Province. However, the decision urges the Province to modernize the mineral tenure regime to create certainty for both the mineral exploration and development industry and Indigenous partners throughout the Province. It also creates a clear timeline for the Province to undertake this important work, in partnership and consultation with Indigenous Peoples and industry.

Kevin O'Callaghan and Nathan Surkan appeared on behalf of coalition of the mineral industry, including: Association for Mineral Exploration British Columbia, Prospectors and Developers Association of Canada, and Mining Association of BC.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.