As of May 30, 2023

Prepared by Nathan Surkan, Associate at Fasken

After 14 days of hearing (an additional 6 days to the originally scheduled 8 days of hearing), the Gitxaala and Ehattesaht judicial review challenge to the grant of mineral claims without consultation in British Columbia concluded on May 19, 2023.

The discrete legal question was whether the Province has a duty to consult prior to the grant of mineral claims. The Petitioners focused their argument to establish that the granting mineral claims constituted an adverse impact to their ability to manage their resources and territory in accordance with their traditional governance and Indigenous legal orders. The Province framed the question as whether it had chosen the appropriate point in time to consult with Indigenous groups (prior to granting permits), as there was no dispute that the Province does consult on mineral exploration projects. The Province provided a large volume of evidence on the regulation of mining generally, in order to situate the grant of a mineral claim as a first, non-impactful step in a long, heavily consultative process prior to the advanced development of a mineral prospect.

MABC, PDAC and AME were not parties to the litigation, but were one of a number of intervenors who were accepted by the Court. Our role was limited to giving a written submission on discrete legal issues, and a brief oral submission (approximately 30 minutes).  Kevin O’Callaghan of Fasken, on behalf of MABC, AME and PDAC, made submissions focusing upon the difference between tenure (granted by a mineral claim) and the activities that were permissible prior to obtaining a permit under the Mines Act. The purpose was to demonstrate the reason a mineral claim is important to the minerals industry, the associated intellectual property protection granted by a claim, and the fact that no activities that could have a material impact upon asserted Aboriginal rights and title may be undertaken prior to consultation occurring at the permitting stage. Kevin also gave strong argument why, if the Court were to accede to the Petitioners’ arguments, the Province should be given time to modernize the Mineral Tenure Act without causing a drastic disruption to industry.

This is also the first time that the Court is squarely confronted with the question of the legal interpretation of DRIPA, the BC legislation implementing UNDRIP. The Court heard days of submissions on the correct interpretation of DRIPA. As such, the Court will likely need to determine whether DRIPA requires an interpretation of provincial law that affords further substantive protection to asserted rights and title of Indigenous groups (beyond the protections set out in section 35 of the Constitution), or whether it constitutes a political commitment to reconciliation.

Overall, Fasken, as counsel to the MABC, PDAC and AME were pleased with the vigour of the Province’s defence of its regime, and with the quality of the Province’s submissions.

It is likely that the Court will take at least 6 months to deliver its reasons for judgment in the judicial review. However, both Gitxaala and Ehattesaht requested interlocutory injunctions, seeking to prevent the Province from authorizing further tenuring in their asserted traditional territories pending the court’s reasons for judgment. The Court will likely deliver these reasons in the interim, and this decision may be delivered within six weeks. These interlocutory injunctions would only apply to the traditional territories of the two Petitioners.

While the reasons for the interlocutory injunction may give an idea of the direction the Court may decide overall, we should not read too much into the interlocutory decision, as the injunction test is a different legal framework than the overall judicial review.