BCSC Acknowledges Crown Duty To Consult In Granting Of Mineral Tenures, Opens Door To Greater Uncertainty

• Jurisdiction: Canada
• Law Firm: Cassels
• Subject Matter: Government, Public Sector, Energy and Natural Resources, Mining, Indigenous Peoples
• Author: Cassels Brock & Blackwell LLP
• Published date: 09 October 2023

On September 27, 2023, the British Columbia Supreme Court (BCSC) released its decision in Gitxaala v. British Columbia (Chief Gold Commissioner).¹ The decision addressed the claims of two First Nations (First Nations) that British Columbia's (BC or the Province) free entry mineral tenure regime was inconsistent with the Crown's duty to consult.

The Court found that the claim registration process, which granted the claimant a mineral claim as well as certain rights to remove minerals and disturb lands within the claim area, triggered the Crown's duty to consult. This conclusion was generally consistent with the Supreme Court of Canada's 2004 landmark decision in Haida Nation v. British Columbia (Minister of Forests).²

In reaching its ultimate conclusion, the Court introduced two new concepts that could have broad implications for government decision-makers and the natural resource industry.

First, the Court found that failure of government agents to implement an alternative regulatory regime constituted an ongoing "non-decision" which was capable of being reviewed.

Second, the Court found that the loss of the value of minerals represented an "adverse impact" on claims to Aboriginal title requiring consultation.

BACKGROUND

Mineral exploration in British Columbia is regulated under the Mineral Tenure Act, R.S.B.C. 1996, c. 292 (MTA). Under the MTA, "free miners" are entitled to register a "mineral claim" over areas of land. The holder of a mineral claim is granted various rights, including the right to enter lands, explore for minerals, and remove samples. Permits may be required to undertake more invasive work, remove bulk samples over 1,000 tonnes, or to construct a mine, however the Court noted that significant amounts of smaller disturbances such as the digging of pits and trenching may occur without any consultation occurring, and that 1,000 tonnes could appear to some to be a large allowable volume of material.³

The First Nations asserted Aboriginal rights, including Aboriginal title encompassing mineral rights, and argued that the granting of mineral claims under the MTA adversely affected their asserted rights and triggered the Crown's duty to consult which was unmet by the existing MTA regime.

SIGNIFICANT ISSUES FOR CONSIDERATION

In making its decision, the Court failed to grapple with several significant issues which create uncertainty for government decision makers and project proponents.

NEW OPPORTUNITIES FOR SEEKING JUDICIAL REVIEW

The claim was brought as an application for judicial review (which...