Court rules B.C.'s mining claims system does not comply with duty to consult Indigenous groups

The B.C. Supreme Court ruled Tuesday that the province's mining permit system is not in compliance with the government's duty to consult Indigenous groups.

The province's current system, at issue in the case, automatically grants mineral claims to industry applicants who submit a request through a government website.

Tuesday's ruling found that process has adverse impacts on First Nations.

It ordered B.C. to replace the system with one that ensures input and consultation with Indigenous communities on whose territories mining permits are granted.

"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," wrote Justice Alan Ross in his 148-page decision.

"The fault in the system lies, not in the granting of individual mineral claims, but in the higher-level decision making relating to the [Chief Gold Commissioner]'s discretion to consult with First Nations."

Ross gave the government a year and a half to replace its current system, but said his ruling does not affect any currently approved mines.

The two communities behind the case, Gitxaała Nation and Ehattesaht First Nation, called the ruling a massive victory for Indigenous people in the province, forcing the government to consult with them as it creates a new system.

"We knew all along B.C. owes a duty to consult ... Indigenous nations prior to granting mineral claims in our territories, and it is breaching that duty," said Gitxaała Chief Councillor, Linda Innes, in a statement. 

"The provincial government must now act quickly to eliminate its unjust practice of selling off our rights without our consultation or consent." 

Innes took issue with the fact the court did not cancel the existing mining permits Gitxaała was challenging on its land, which she said "leaves our territory open" to continued exploitation without her nation's consent.

Gitxaała's territory is south of Prince Rupert on the north coast of B.C. The Ehattesaht First Nation's territory is on the northwest coast of Vancouver Island. 

'Modernization' welcomed

Mining industry representatives said they welcomed the ruling, in particular its 18-month extension of the current system and existing permits, despite the fact that the court ruled that the current system, established by the Chief Gold Commissioner of B.C., is in breach of its constitutional obligations.

The Association for Mineral Exploration (AME) said in a statement on behalf of Keerit Jutla, association president, that a year and a half at least provides "clarity and predictability" for the industry, while allowing long-overdue "modernization" of the province's Mineral Tenure Act.

Jutla said the outcome is why the AME intervened in the judicial review, because time is needed to "look holistically" at the breadth of the Act.

"We are actively engaging with key stakeholders and the B.C. Ministry of Energy, Mines and Low Carbon Innovation with a goal to ensure the mineral claim staking process remains competitive and efficient while respectful of the rights of Indigenous Peoples," said Jutla.

"We know there is an opportunity for a more inclusive process that provides shared benefit as we unlock the minerals and metals necessary for a low-carbon future."

A lawyer for Gitxaała called the ruling a significant victory. 

"First Nations consent needs to be the foundation of a modern mining regime in B.C.," Jessica Clogg, executive director of West Coast Environmental Law, told CBC News in an interview.

'Should not be merely symbolic'

But some in the legal community reacted with alarm to one aspect of the court decision.

Justice Ross raised questions about the strength of a centrepiece of the B.C. NDP government's reconciliation promises.

The province passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA) in late 2019, which its website states "establishes the UN Declaration on the Rights of Indigenous Peoples as the province's framework for reconciliation."

DRIPA, according to the government, "mandates the government to bring provincial laws into alignment with the UN Declaration."

At the time of its release, B.C.'s Ministry of Indigenous Relations and Reconciliation touted the bill as a first in Canada.

"Today, we have made history," a statement on the ministry's website at the time stated. "British Columbia is the first province in Canada to enshrine the human rights of Indigenous peoples in law."

But in his ruling, Justice Ross said he did not find that B.C.'s legislation in fact enshrined UNDRIP in the province's legal system, stating he could rely on it as an "interpretive aid" only in his judgment.

"I find that DRIPA ... does not implement UNDRIP into the domestic law of B.C.," Ross wrote, adding that it "does not create justiciable rights."

That raised alarms for the province's Human Rights Commissioner, Kasari Govender, who was an intervenor in both First Nations' lawsuits.

She said she was "disappointed" to see the B.C. Declaration on the Rights of Indigenous Peoples Act dismissed.

"Today's decision indicates that the UN Declaration on the Rights of Indigenous People still does not have the force of law in B.C.," she warned. "The Declaration Act should not be merely symbolic."