BC Supreme Court on Mineral Exploration: One Step Forward Two Steps Back

On September 26, the British Columbia Supreme Court released its long awaited decision in Gitxaala v. British Columbia (Chief Gold Commissioner) 2023 BCSC 1680. This decision deals with the legality of the mineral tenure system in BC, which allows anyone to stake a claim to minerals without consulting Indigenous Nations within whose territory the minerals are situated.

The Government of British Columbia has stated that consulting with Indigenous peoples after a proposed exploration or development is legally sufficient and no prior consultation is necessary. Gitxaala (and others) have argued that this system is illegal as it does not meet the duty to consult requirements, and also violates the United Nations Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44 (“DRIPA”). This blog post will provide an overview of the recent judgment, explore its implications for Indigenous sovereignty and reconciliation, and outline what may happen next.

As with so many cases in Aboriginal law the result is a mixed bag. On the whole though, the decision continues the trend of showing the limits of the court as tool for making fundamental rather than incremental change.

The Duty to Consult Applies to the Grant of Mineral Tenures

On the positive side of the ledger the court held, as was foreshadowed by Ross River Dena Council v. Government of Yukon, 2012 YKCA 14, that the mineral tenure system as implemented in British Columbia is inconsistent with the duty to consult. The court disagreed with British Columbia’s position, holding that granting tenures adversely impacts the rights of and interest of the petitioner nations, including:

  • areas of significant cultural and spiritual importance to the Nations;
  • the Nations’ rights to own and derive financial benefits from the minerals within their asserted territories.

This double-barrelled basis is welcome for two reasons. First, by explicitly finding the that mineral tenures may adversely affect the area’s spiritual and cultural importance to the Nation, it deepens the legal significance of Section 35 rights. It recognizes that Indigenous Nations hold rich cultures and have relationships with their lands beyond subsistence. Second, by recognizing the tenures’ potential to adversely affect the Nations’ rights to financially benefit from minerals in their territory, the court gives life to the core finding in Delgamuukw and Tsilhqot’in: Aboriginal title brings with it true beneficial ownership (and control) over land and not merely the right to use it for traditional purposes.

The court determined that it was not necessary to declare the Mineral Tenure Act unconstitutional. Rather, it found that the legislation provided the government with enough leeway to create a pre-grant consultation system, which they were obligated to do. The court gave the government eighteen months to establish and execute the system, while the current system remained in place.

Dishearteningly, the court declined to overturn existing mineral tenure claims in the affected areas. This decision was based on:

  • the forward-looking nature of the obligation to consult, which applies to decisions that are yet to be made rather than decisions that have already been made; and
  • the de facto doctrine, which allows rights granted to third parties under an invalid legislative framework to remain intact based on the their assumption that the framework was lawful.

This serves as a strong reminder to Indigenous Nations to take action when they have concerns about government decisions, rather than allowing them to stand in the hope that they will be sorted out at a later date.

UNDRIP does not apply in British Columbia (as a law)

As a general rule, in Canadian law, international treaties do not become part of our domestic law unless there is a domestic law that actually adopts or implements the international treaty. This two step process (ie sign and ratify treaty and then pass a local law) is further complicated by the fact that any such law has to be passed by the constitutionally competent jurisdiction (that is, the Federal government cannot make an international treaty apply in an area of provincial jurisdiction as that is up to each province acting on its own). Thus, while Canada has accepted UNDRIP at an international level it is not clear whether it has been implemented domestically so that courts can enforce it. This does not mean that UNDRIP has no role in Canadian law without domestic law but its role is a limited one – it can be used in limited circumstances to interpret the law to resolve ambiguities but not change the law or be treated as law itself (see Justice Stratas’ comments in this in another Gitxaala case: Gitxaala Nation v. Canada, 2015 FCA 73).

In this case, the court dealt with two main arguments on the legal effect of DRIPA. First, while the petitioner Nations and the Province agreed that UNDRIP had not yet been “implemented,” the BC Human Rights Commission (an attendee) argued that s. 2 of DRIPA essentially did exactly that: making UNDRIP itself enforceable in British Columbia against the government and third parties. Second, Gitxaala argued that even if s. 2 did not adopt UNDRIP into the law off British Columbia, s.3 of the Act created a legal obligation on the government to take steps to bring its laws into compliance with UNDRIP. The court rejected both arguments.

The Implementation Argument: In respect of s. 2 of DRIPA, the court interpreted the section to state the purpose of the legislation – essentially an interpretive provision, rather than a substantive provision creating rights or obligations. The purpose here is, in summary, to create a process for giving effect to UNDRIP in British Columbia through modifications to provincial law, regulations and policy. Thus, the court held that “UNDRIP remains a non-binding international instrument.”

The Legal Obligation Argument: In respect of s. 3 of DRIPA, the court noted that while this section might give rise to issues that could be examined by a court (ie that are justiciable), it held that the section was not intended to give the courts a role in determining whether or not provincial law is consistent with UNDRIP. Instead, the court found that s. 3 intended to create a process of consultation and cooperation between the Indigenous people of British Columbia and the government to bring BC laws into line with UNDRIP rather than a process that could be driven by the courts.

The court left for another day the issue of whether courts could examine if the Province had taken all measures necessary to ensure BC’s laws are consistent with UNDRIP, or whether the Province had properly done so in “consultation and cooperation” with Indigenous peoples in BC.

Fundamentally, underpinning the court’s approach to the DRIPA is the view that it is intended to create a cooperative, consultative political process to reform British Columbia’s laws to bring them into line with UNDRIP through non-judicial means. While the decision left open some room for judicial intervention in future cases, it seems that role is most likely to be limited.

The Problems of Process

This case illustrates the continued dilemma facing Indigenous people and their counsel hoping to advance claims against the government and third parties in court. Nations are often facing serious risks to their rights and interests with limited time and resources. So, looking at the various processes available – how can we best resolve issues efficiently and effectively?

Here, the Petitioners applied for judicial review, which is a stream-lined court proceeding for challenging a government decision. There are very practical advantages to judicial review applications. For example, evidence in judicial review applications is provided through affidavits rather than live witnesses. Judicial reviews also have more limited pre-trial process. This can reduce the costs and get cases heard more quickly, avoiding the multi-decade battles that other cases can turn into.

However, there are significant trade-offs for efficiency. For example, parties are more limited in the evidence they can introduce in a judicial review. The exact rules are somewhat arcane and vary from jurisdiction to jurisdiction, but they are frequently raised when Indigenous people seek to challenge government action. This can mean that some cases are dismissed because judicial review proceedings are the wrong tool or relevant evidence is excluded because it does not meet the strict rule in judicial review proceedings. Additionally, even where cases are successful, the potential remedies in judicial review proceedings tend to be more limited. For example, in some jurisdictions (such as Ontario) it is difficult to challenge legislation in a judicial review proceeding and generally the remedies focus on process.

In this case, Gitxaala attempted to adduce a substantial amount of evidence about matters relevant to the proceeding that had not been before the original decision maker. While some of this evidence was allowed for the purpose of providing “general background” a great deal of the evidence was excluded because it did not meet the strict evidence rules. Unfortunately, the strict application of these rules  left the court with a limited view of the real effect of the mineral tenure system and some of the alternatives available to fix it.

Where from Here

Undoubtedly there will be appeals taken from this decision and higher courts are going to weigh in on these questions. The free entry mineral tenure system is used in jurisdictions across Canada and the fact that the decision did not exclusively rely upon Aboriginal title will assist in areas subject to historic treaties. These appeals will also bring greater clarity to what it will take to implement UNDRIP in Canada and also what effect the Federal UNDRIP legislation is likely to have.

What will be very interesting to see is whether British Columbia takes up the court’s invitation to work with Indigenous Nations to develop a new approach to mineral tenures and consultation. This would be the most productive way forward and one that could bring real advances in reconciliation. To do so, the ultimate process must be more than a simple notice and comment process as that is unlikely to address the real issues between the parties. We believe a more meaningful process would see deep and genuine consultation (and ideally agreement with a Nation) about areas of special interest or cultural importance, cumulative effects, economic interests and the management of the long term approval process before an area is opened for staking. A staking regime could then be implemented that reflects the Nation specific concerns and aspirations that will sooner or later have to be accounted for in any ongoing process. It is only this approach – which moves away from a presumptively open for business regime to a regime that recognizes that Indigenous ownership, interests and jurisdiction have to be addressed first – that will advance true reconciliation.