Challenging colonial mining laws: First Nations fight for Indigenous consent

Over most of the past month, the B.C. Supreme Court has heard a challenge brought by the Gitxaała and Ehattesaht First Nations against the province’s decision to award multiple mineral claims in their unceded territories.

This judicial review is essential to reforming the colonial-era Mineral Tenure Act (MTA), which permits mineral claims to take place without Indigenous consent. It could also set the stage for the implementation of the Declaration on the Rights of Indigenous Peoples Act (DRIPA) in all future mineral exploration projects.

Passed in 2019, DRIPA mandates the province to “take all measures necessary” to ensure B.C. laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). While its 2022 DRIPA Action Plan indicates the province commits to modernizing the antiquated MTA in consultation with First Nations, no implementation plan for this has been developed, leaving the B.C. Supreme Court with the task of determining a path forward.

If the province is serious about implementing DRIPA and aligning B.C. laws with UNDRIP, any changes to the MTA must prioritize Indigenous consent. Some exploration companies are already moving in this direction.

The Initiative for Responsible Mining Assurance, an independent coalition of industry groups and civil society, is developing standards for its members, including seeking the consent of affected Indigenous Peoples before exploration begins. Such consent will depend on meaningful participation, and, better still, leadership by Indigenous Peoples in the mineral exploration and mining sector.

The province’s outdated mineral tenure regime stands in stark contrast to the progress that has been made to constitutionally recognize and protect Aboriginal rights and titles. From a series of Supreme Court of Canada decisions starting with Calder (1973) to Section 35 of the Constitution Act, 1982, both Canada and B.C. have become legally accountable for the recognition and affirmation of Aboriginal rights.

But what this entails in practice seems to remain poorly defined for those in power. The Supreme Court of Canada has provided some guidance in cases like Delgamuukw (1997) and Haida Nation (2004), which have affirmed that Aboriginal title has existed in B.C. since time immemorial and continues to exist.

This means that the Crown has a constitutional duty to consult and accommodate First Nations Peoples when their rights might be affected.

Aligning the laws of B.C. with UNDRIP means the province must reconcile its “free entry” mineral claim regime with a foundational UNDRIP principle — the free, prior and informed consent of Indigenous Peoples for “any project affecting their lands or territories.”

In their legal submissions, the Crown and some industry intervenors have argued that any changes to the mineral tenure regime would freeze mineral exploration in B.C. They also argue that the duty to consult does not arise until there are any adverse impacts on Indigenous rights, which they claim come much later in the permitting process.

This approach fundamentally misconstrues Indigenous rights and title and undermines the province’s commitment to implementing UNDRIP.

If the province wishes to become an environmental, social and governance (ESG) leader, upholding Indigenous rights must be a cornerstone of any future mineral regulatory regime, including the Canadian Critical Minerals Strategy.

Promoting mineral exploration in B.C. should not be done at the expense of Indigenous Peoples, their rights and their territories. Reconciling mineral exploration rights while also implementing UNDRIP will require more than just maintaining the status quo.

This will be a complex process.

But the first step is clear: urgent action is needed to reform the outdated MTA.

Sara Ghebremusse is an assistant professor of law at the University of British Columbia. Allen Edzerza is an Elder of the Tahltan Nation who has served as an adviser on Aboriginal issues and mining reform to the governments of British Columbia and Yukon. Carol Liao is an associate professor of law and UBC Sauder Distinguished Scholar of the Peter P. Dhillon Centre for Business Ethics.
Nadja Kunz is an assistant professor and Canada Research Chair at the Norman B. Keevil Institute of Mining and UBC School of Public Policy and Global Affairs. Philippe Tortell is a professor and head of the UBC Department of Earth, Ocean and Atmospheric Sciences.
They are members of the UBC Future Minerals Group. The views expressed are solely those of the authors.