First Nation appeals court decision

Repost from CIM Magazine. Read full article here

Fly camp with Lindquist Peak in the distance on the Deer Horn property, 120 kilometres south of Smithers, B.C. Courtesy of Tony Fogarassy

Leaders of the Gitxaała Nation applauded a British Columbia Supreme Court ruling that the province’s online claim staking system violates the Crown’s duty to consult Indigenous peoples.

But the Nation is pursuing a partial appeal of the decision, arguing that the court should have prevented further staking on Gitxaała territory while the province develops a new approach to mineral tenure.

In late September, Justice Alan Ross ruled on claims from two separate petitions by the Gitxaała Nation and the Ehattesaht First Nation. Ross found that the province’s automatic online claim staking system violates the Aboriginal and treaty rights set out in section 35 of the federal Constitution. However, Ross suspended his declaration for a period of 18 months to give the provincial government time to update the current process to include the duty to consult; during that window, the current staking system will remain in effect.

The case also marked the first legal test of B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA), which the government introduced in 2019 to enshrine the United Nations Declaration on the Rights of Indigenous People (UNDRIP) into B.C. law. But Ross found that the court did not have a role in enforcing the application of DRIPA.

The ruling is set to transform B.C.’s mineral staking regime at a time when the province is developing a strategy to become a major global supplier of critical minerals.

“We are at a nexus for First Nations rights generally, but also for the exploration mining sector. The critical minerals gold rush has brought into focus some of these issues of how [to] deal with Indigenous peoples’ lands,” said Tony Fogarassy, chair of the board of directors of Vancouver-based junior exploration company First Tellurium Corp, in an interview with CIM Magazine. First Tellurium and Kingston Geoscience Ltd. were co-intervenors in the case, with a submission that supported consultation at the staking stage.

Mineral claim triggers consultation obligation

Legal experts say the ruling could also have implications for provinces that have similar free staking systems, or where Indigenous nations have not signed treaties.

But the Gitxaała Nation believes that the ruling is inadequate. The Nation is appealing the court’s refusal to quash specific claims on Gitxaała territory and to prevent further automatic claim-staking on Gitxaała lands. It is not, however, appealing the court’s central decision on the claim staking system, and in an Oct. 25 press release, Hereditary Chief Sm’ooygit Nees Hiwaas (Matthew Hill) called it an “important win” for the Nation.

The court declined to quash the identified claims because they had been staked under a presumptively valid regulatory scheme, and out of concern that they could call into question the validity of other mineral claims.

Linda Innes, chief councillor with the Gitxaała Nation, said in an interview with CIM Magazine that the Nation had never ceded its territory or hereditary system of governance. Yet despite this, the Nation has never been consulted when mineral claims were staked on its land.

The five claims in question are located on Lax k’naga dzol (Banks Island), an area at the heart of Gitxaała territory, which Innes said has traditional villages, is used for harvesting and has spiritual importance. “It’s very significant in terms of what it offers to our people as a way of life, and it speaks to what our hereditary chiefs, matriarchs and governing council want to leave behind for future generations,” she said.

Roughly 16 per cent of Banks Island has been staked, or 160 square kilometres—and one claim was staked while the case was being heard.

James Herbert, senior advisor to the Gitxaała Nation, who runs the Nation’s territorial management agency, told CIM Magazine that the Nation is concerned about “re-staking [of existing claims] and staking of more [claims]” over the 18-month transition period “as people pick up on critical minerals strategies. We’ve also been in a lot of conversations with other nations and…that fear is very much alive.”

The Nation is also seeking a declaration that the DRIPA applies to all B.C. laws, and that the court has a role in enforcing it. In his decision, Ross wrote that the section of the act that sets out DRIPA’s purposes, including “to affirm the application of [UNDRIP] to the laws of British Columbia,” did not have the effect of law, and the section that instructs the provincial government to take “all measures necessary” to ensure provincial laws are consistent with UNDRIP, “in consultation and cooperation with the Indigenous peoples in British Columbia” did not grant the courts the authority to rule on such disputes.

In the case, the court sought to determine whether B.C. “drew the line” on when consultation becomes necessary in the appropriate place. Currently, consultation is only triggered when a company or prospector wants to undertake exploration that would involve land disturbance. But Ross found that a mineral claim meets the threshold of having potential adverse impacts on Aboriginal title, due to its potential to impact areas of cultural and spiritual significance, as well as physical impacts, such as the loss of minerals, physical disturbance and loss of potential financial benefit from the minerals.

Ross also concluded that the Mineral Tenure Act (MTA) itself did not breach Aboriginal title rights, and the fault was instead with chief gold commissioner, who has the latitude to introduce consultation before the registration of a claim.

Currently, certified individuals can access the ministry’s online claim staking system and receive the mineral rights to plots of land for $1.75 per hectare. The claims take effect immediately, and give the holder the right to explore the area with handheld tools. According to evidence submitted by the province in the case, between 5,000 and 6,000 new mineral claims are made each year.

Keerit Jutla, president and chief executive officer of the B.C.-based Association for Mineral Exploration (AME), told CIM Magazine that work was already under way to modernize the MTA prior to the ruling, and said the 18-month time frame will allow government, industry and Indigenous people to work together on a new regime while providing certainty to mineral explorers. The AME, the Prospectors and Developers Association of Canada (PDAC) and the Mining Association of BC (MABC) were intervenors in the case, and their submission argued that activities that have material impact on asserted Aboriginal rights and title cannot occur until after consultation at the permitting stage.

“This outcome is specifically why we decided to intervene. We need to look at this holistically, in terms of how we ensure there’s no impact to local communities that rely on mineral exploration and ensure that what we build is respectful of Indigenous rights,” Jutla said.

He said the association encourages its members to engage early and often with First Nations.

Indigenous engagement

Kevin O’Callaghan, partner at Fasken Martineau DuMoulin LLP and leader of the firm’s Indigenous law group, told CIM Magazine that concerns about what the ruling means for the mineral exploration industry are somewhat exaggerated. “Some people have said the sky is falling, but the sky is not falling,” he said. O’Callaghan represented AME, PDAC and MABC.

He noted the “vast majority” of mineral exploration activity is permitted, and thus can only occur after consultation. “The idea that consultation before you can do something [will be] difficult is not true,” he said. “The important aspects of a mineral claim—the ability to be first in line and not have the intellectual property you’re creating on that property be taken by somebody else without you being able to access it—can all be maintained while asserting some consultation at the beginning.”

O’Callaghan noted B.C. is a unique case, as the vast majority of Indigenous nations never signed treaties that would have ceded their land to the Crown. While most of the Prairie provinces and Ontario are covered by the numbered treaties, he said the ruling may have implications for provinces and territories with First Nations who assert Aboriginal title.

In a blog post, a group of Osler, Hoskin & Harcourt lawyers suggested the case “could apply to other similar [mineral rights] regimes across Canada.” In addition to B.C., Ontario, Manitoba, New Brunswick, Newfoundland and Labrador, Quebec, Saskatchewan and all three territories have some version of a free staking system, according to a 2021 analysis by law firm Cassels. Alberta, Nova Scotia and Prince Edward Island have a “Crown discretion” system.

For years now, Fogarassy said he has sought consent from First Nations before staking on their territory. Only two nations have said they were not interested, and in both cases, he said, he backed off. He added that he expects end users of metals and minerals will soon come to expect that from miners.

“They all want to source minerals sustainably, ethically and responsibly,” he said. “If those minerals come from unceded territories where a mining proposal is opposed, that’s unsustainable and unethical.”

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