The B.C. Court of Appeal decision on the province’s mineral claims regime threatens to undermine David Eby’s economic development plans.ETHAN CAIRNS/The Canadian Press
British Columbia’s NDP government will amend its landmark reconciliation law, the Declaration on the Rights of Indigenous Peoples Act, in response to a BC Court of Appeal decision that found the province’s mineral claims regime is “inconsistent” with the requirements of DRIPA.
The court’s judgment on Friday establishes a new benchmark for the implementation of the declaration, which was passed unanimously by the B.C. legislature in 2019, creating a binding obligation on government to abide by the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.
It is the second time in recent months that Premier David Eby’s government has had to respond to a court decision that redefines his reconciliation agenda, and threatens to undermine his government’s economic development plans. An August BC Supreme Court decision known as Cowichan has cast private land ownership rights into question in cases where they conflict with certain land claims by Indigenous groups. Mr. Eby has vowed to appeal.
On Monday, Mr. Eby told reporters his government will amend DRIPA, although he rejects calls from the opposition to repeal the law entirely.
“Clearly, amendments are needed,” he said. The objective, he said, would be to make it clear that it is not up to the courts to bring provincial law into line with DRIPA. “This is the territory of government, negotiating with First Nations, setting the pace and choosing the laws to bring into alignment.”
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The 2019 law promised to ensure all provincial statutes and policies align with internationally recognized human rights as spelled out in UNDRIP. Among the commitments enshrined in the UN declaration is the right of Indigenous Peoples to own, use and control their traditional lands, territories and resources. It sets a standard for free, prior and informed consent if the Crown wishes to develop those lands and resources.
“Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect,” wrote Justice Gail Dickson in the majority opinion. “The answer is obvious: UNDRIP and the Mineral Claims Regime are inconsistent.”
In his dissenting opinion, Justice Paul Riley argued that DRIPA gives legislators, not the courts, the mandate and responsibility to pursue legislative reconciliation through the implementation of UNDRIP.
While B.C.’s DRIPA was heralded as a groundbreaking shift toward reconciliation – the federal government followed suit with its own law in 2021 – it was made clear from the start that it would take decades to bring the province’s statutes into line with UNDRIP.
As Canada and the provinces seek to quickly advance major resource projects in response to international trade instability, those commitments to seek consent will be tested.
The provincial government is working to secure tens of billions of dollars in new mining investments. Critical mineral mining is a centrepiece of B.C.’s economic plan.
Michael Goehring, head of the Mining Association of BC, said the decision is “highly consequential” for his industry. “It will shift decision making from duly-elected representatives in the legislature to the judiciary and result in more litigation and unprecedented uncertainty that will negatively affect B.C.’s investment climate.”
The Gitxaała and the Ehattesaht First Nations challenged B.C.’s Chief Gold Commissioner over the province’s automated online registry system that allowed prospecting and claims for mineral rights on Crown land to be registered prior to consultation with affected First Nations. They argued the system is inconsistent with rights recognized in DRIPA which underscore a duty to consult.
The Gitxaała on B.C.’s north coast, and the Ehattesaht, on the northwest coast of Vancouver Island, filed the case in Vancouver based on mineral claims staked in their traditional territories. The Gitxaała hailed Friday’s court ruling as a precedent-setting victory for all First Nations.
The provincial government has, in response to a lower-court ruling on the Gitxaała case, implemented a new system to ensure First Nations are consulted before mineral or placer claims are registered. The temporary measure replaces automatic claim registration with an application-based system that includes consultation with First Nations, while a new Mineral Titles Online system is developed for next spring.
Meanwhile, the province is preparing its appeal of BC Supreme Court Justice Barbara Young’s Aug. 7 decision that found the Cowichan Tribes have Aboriginal title – a type of ownership claim rooted in ancestral use of land – to roughly 800 acres in Richmond, including private properties. That title is a “prior and senior right” to land, she ruled, over and above the “fee simple” title that private landholders have.
Mr. Eby has said that ruling needs to be overturned to ensure private ownership is protected. “The anxiety among people who are affected by this decision is totally reasonable,” he said earlier this fall.