Consultation Prior To Mineral Claims Staking: A Deeper Analysis Of The Gitxaala Case

• Published date: 23 October 2023
• Subject Matter: Government, Public Sector, Indigenous Peoples
• Law Firm: Fasken
• Author: Mr Kevin O'Callaghan and Nathan Surkan

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...