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What is the Mineral Tenure Act?
British Columbia’s Mineral Tenure Act regulates how mineral claims are granted in British Columbia. It outlines the free-entry system, the method used to acquire mineral rights, or “stake a claim”, in BC. The Mineral Tenure Act is complemented by the Mineral Tenure Act Regulation.
Additional Mineral Titles Information is available on the BC government website.
What is BC’s Declaration Act?
The BC government passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA or the Declaration Act) in 2019, the first province in Canada to do so. One area of the legislation mandates that the government align provincial laws with the Declaration Act.
What is the Gitxaala Nation legal challenge?
In 2021, Gitxaala Nation launched a legal challenge against the BC government, stating that the free-entry system regulated by the Mineral Tenure Act is unconstitutional and allows for mineral exploration without consultation. In 2022, Ehattesaht First Nation filed a similar petition.
Both Gitxaala Nation and Ehattesaht First Nation also requested interlocutory injunctions – requests to maintain the current situation until the case is resolved – to prevent the province from authorizing further tenure in their asserted traditional territories pending the court’s reasons for judgment.
The cases were heard together in April and May 2023. After 14 days of hearing, the Gitxaala and Ehattesaht judicial review challenge concluded on May 19, 2023.
What was the outcome of this judicial review?
On September 26, 2023, the British Columbia Supreme Court in Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680, ruled that the Province must modernize the operation of the Mineral Tenure Act to allow for some consultation in advance of staking claims, but has provided the Province with 18 months to do so in a manner that supports the minerals industry and Indigenous rights in British Columbia.
Read the Honourable Justice A. Ross’s Reasons for Judgment: Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 (CanLII)
What are the five key points from the judgment?
- The Court found that the Crown (the Government of British Columbia) owes a duty to consult Indigenous groups with asserted rights and title. The current practice of granting of mineral claims without consultation with Indigenous groups is contrary to this duty.
- The Court granted the Province 18 months to consult with Indigenous groups 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 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 Mineral Tenure Act 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 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.
Did the Gitxaala Nation appeal the decision?
Yes, the Gitxaala Nation appealed the September 2023 BC Supreme Court decision. As it relates to current mineral exploration activity, the Gitxaala Appeal is focused on overturning existing claims actively being challenged in their territory and aims to prevent any additional claims from being staked in their territory until the modernization process is complete.
The Province has yet to announce what its response to the Appeal will be. We will continue to be an active advocate throughout this modernization process, representing the mineral exploration industry at the table with government and stakeholders, and intervening in any appeal process.
Why did the AME seek Intervener status in this legal challenge?
In a court case, interveners voluntarily ask the court to participate in the proceedings. In this case, AME, together with the Mining Association of British Columbia (MABC) and the national Prospectors and Developers Association (PDAC), intervened to advocate for modernizing the process that will allow us to engage and explore in a way that is respectful of all land users, while also maintaining the competitive nature of our industry. And, to request time for the transition to take place.
As interveners, MABC, PDAC and AME were not parties to the litigation, but were one of a number of interveners who were accepted by the Court.
During the modernization process will further mineral tenures or other exploration and mining approvals be given without First Nations consent?
The Supreme Court of BC’s decision allows for responsible exploration to continue through the modernization process, including the ability to acquire mineral rights and stake a claim. The judge also made it clear that all mineral claims registered under the existing system remain valid.
Link to additional resources
BC’s Notice of Work (NoW) Process
The Mineral Exploration Cycle
