On September 26, 2023, the BC Supreme Court released its reasons for judgment in Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680. Following the release of the decision, we highlighted the key conclusions in a brief bulletin. This is a more detailed analysis of the Court's conclusions.
The key conclusions from the decision are:
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 (MTA) 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 MTA 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 (MTO) 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 (DRIPA) 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 MTA.
1. What was the specific decision challenged by Gitxaala and Ehattesaht?
Gitxaala and Ehattesaht chose to proceed via judicial review, rather than challenging the constitutionality of the operative legislation, the MTA, through an action. Both Indigenous Nations argued that the Mineral Tenure Online system, the method of staking claims designed by the Chief Gold Commissioner, did not permit for the Crown to meet its constitutional duty to consult. The Court framed the challenged decision as follows (para. 77):
"I find that what at issue is the CGC's [Chief Gold Commissioner] ongoing decision not to implement a system that provides for consultation prior to the issuance of mineral claims. For this reason, the impugned decision-making in this case can be categorized as a series of “non-decisions.”
2. How did the Court frame the issue?
Under the current approach to consultation, the Crown consults prior to the issuance of permits under the Mines Act. Due to the inclusive definition of a “mine” and a “mining activity” in the Mines Act, permits are required early on in the exploration process, though not at the outset of prospecting. The Province's guidance to the exploration industry, through Information Update No. 38, demonstrates that the scope of physical work on a claim without a permit is extremely limited.
The narrow question the Court considered was whether the Crown's duty to consult arose merely by registration of a mineral claim through the Mineral Tenure Online system. Therefore, the question the Court considered was whether the mere registration of a mineral claim could “adversely affect” the Petitioners' asserted Aboriginal rights or title, sufficient to trigger the Haida duty to consult.
Given the narrow scope of the issue, the Court found that any evidence regarding the “detrimental effects of mines and mining generally” was irrelevant and, in any event, these impacts could only occur after the granting of an exploration permit or a lease, both of which require Crown consultation (paras. 241 b), 246 b)).
3. What are the impacts from the registration of a claim?
The Court assessed Gitxaala and Ehattesaht's asserted “physical” and “non-physical” adverse impacts. In short, the Court:
- rejected the petitioners' argument that there were impacts to traditional legal orders and “decision making and governance”;
- accepted the impacts to cultural and spiritual aspects of their asserted rights; and
- accepted that there were potential physical impacts relating
- loss of minerals;
- physical disturbance; and
- loss of financial benefits associated with the minerals.
The Petitioners argued that the registration of a mineral claim started a “runaway train” that resulted in subsequent authorizations and a foreclosure of meaningful consultation. The Court found this was not established on the evidence (para. 241 b)).
A. The Province retains jurisdiction over land until Aboriginal Title is settled
The Court held that, until Aboriginal Title is settled, the Province retains jurisdiction over the lands in the Province of British Columbia. The Court accepted the Province's submission that the assessment of adverse impacts must be focused on whether an Indigenous Nation's ability to fully realize the benefits of Aboriginal title in the future is impacted – it is not focused upon the present exercise of asserted jurisdictional rights.
In so doing, the Court rejected the Petitioners' proposition that the impacts to their ability to exercise their traditional legal systems and jurisdiction at present was sufficient to establish an adverse effect (para. 306). This finding aligns with recent decisions of the BC Court of Appeal (Gamlaxyeltxw v. British Columbia, 2020 BCCA 215) and the Yukon Court of Appeal (Ross River Dena Council v. Yukon, 2020 YKCA 10).
B. Mineral claims may create impacts to cultural and spiritual beliefs
The Court found that “the allowance of mineral claims without consultation creates an adverse impact on the petitioners' Aboriginal rights regarding their cultural and spiritual beliefs” (para. 330).
As this finding was grounded in the specific evidence proffered by Ehattesaht and Gitxaala, these findings cannot be extrapolated province-wide – they are grounded in the specific asserted rights of each Indigenous Nation.
The Court's finding of impacts to cultural and spiritual beliefs was grounded in Ehattesaht's evidence of its spiritual connection to crystals within its traditional territory, and Gitxaala's evidence of its harvesting of ochre at a traditional gathering place, Ksgaxlam and the presence of supernatural dens that were disturbed through the presence of mineral exploration activities (paras. 321-323). This finding was based upon an impact to Aboriginal rights, rather than Aboriginal title.
C. Mineral claims transfer rights to third parties that may affect Aboriginal title
These legal findings are important to industry, as they offer insight into the deficiencies that the Province will seek to address in remedying the constitutional infirmity of the current operation of the MTA.
The Court considered the nature of the interest that was granted to a mineral claim holder, and the potential impact of the granting of a chattel interest in the minerals by virtue of registration of a claim (paras. 352-392). The Court also considered the application of two decisions that came to opposite conclusions regarding the “adverse impact” of granting preliminary exploration rights to industry: Ross River Dena Council v. Government of Yukon, 2012 YKCA 14 and Buffalo River Dene Nation v. Saskatchewan (Energy and Resources), (2015 SKCA 31). The Court ultimately found that the impacts to Aboriginal rights and title were sufficient enough to trigger the duty to consult prior to the granting of a claim, holding that consultation is based upon claimed rights and the claimed right to minerals under Aboriginal title land could not be ignored at this stage (para. 392):
"An overly narrow understanding of Aboriginal title, one that excludes the rights to subsurface minerals, is inconsistent with the goals of reconciliation and upholding the honour of the Crown."
The four areas of “adverse impact” that the Court found established were:
- Loss of minerals – the Court found the permanent removal of minerals constituted an adverse impact, as the result was to “permanently reduce the land's value” (para. 390).
- Loss of mineral rights – the Court found the transfer of a “mere chattel” interest was sufficient to constitute an adverse impact on Aboriginal title (para. 394). The Court did not address the difference in the legal right granted in the Yukon in Ross River (closer to a lease interest) versus the “mere chattel” interest granted under the BC minerals regime, and instead applied the finding in Ross River (para. 394).
- Loss of ability to raise capital; and
- A non-negligible disturbance to land – The Court found that the right to engage in pitting, trenching and drilling with hand-held drills, and the ability to set up temporary residence was sufficient to constitute an adverse impact (para. 395). The Court did not address the fact that the vast majority of the activities that are authorized pre-permit with a claim are not authorized by granting a claim, but are able to be undertaken legally without a mineral claim.
4. The breach of the duty to consult arises from implementation of the MTA, not its constitutionality
The Court decided that the failure to consult lies at the level of the Chief Gold Commissioner, not from the MTA or the regulations themselves (paras. 405-406).
This finding is important for the minerals industry because:
- The Province is permitted to maintain the current structure of the MTA and the ownership rights conferred by the legislation while upholding its duties towards Indigenous Peoples; and
- The Province has broad discretion in the manner in which it implements a new scheme to meet the duty to consult.
5. The passage of DRIPA does not implement the UN Declaration on the Rights of Indigenous Peoples
This was the first case to consider the issue of the proper interpretation of the Declaration of the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44 (DRIPA). The Court's findings with respect to DRIPA aligned with the Province's interpretation of the legislation. The Court held that:
- DRIPA represents a commitment on behalf of the government to achieve alignment between the laws of British Columbia, but does not implement UNDRIP as law into the Province (paras. 470):
"In sum, s. 2(a) of DRIPA does not implement UNDRIP into the domestic law of British Columbia. This interpretation is consistent with the characterization of s. 2(a) as a purpose statement as well as the legislation's purpose and context. As such, UNDRIP remains a non-binding international instrument."
- Section 3 of DRIPA does not create an ability to challenge laws of the Province on the basis of “consistency” with UNDRIP (para. 489):
"It is not for the court to intervene and unilaterally determine what is meant by this provision. The provision contemplates ongoing cooperation between the government and the Indigenous peoples of BC to determine which of our laws are inconsistent with UNDRIP."
6. What did the Court order?
The Court's order was limited to the granting of a declaration that the Province does have a duty to consult rights-holders prior to granting mineral claims in the Province. As the Court did not find the MTA or the regulations to be unconstitutional, the Province retains latitude to implement various measures that may meet its duty to consult, granting the Province 18 months (the amount of time sought by the Province and by the minerals industry at the hearing) to address the question of how to implement the Crown's duty to consult in the claims-staking process.
The Court acknowledged the fact that the depth of consultation will likely range, depending upon the specific Indigenous Nation and the specific location of a mineral claim within their traditional territory and did not comment upon the methods by which the Crown may meet its duty across the Province (para. 518).
In the interim, the previous system continues to operate, and claims may be staked (or continued via registration of work) through the MTO system.
The Province had previously committed to the modernization of the Province's mineral tenure system and has already commenced the important work of addressing the Court's findings We expect the Province to continue to work with industry and Indigenous partners throughout the Province to design a new system that supports a thriving minerals industry and upholds the rights of Indigenous Peoples in British Columbia.
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.