In Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 (“Gitxaala”), the petitioners, which are First Nations who assert rights within British Columbia, argued that the current mineral tenure system in the province adversely affects their asserted rights as: (i) it operates in contravention of the Crown’s duty to consult with First Nations, and (ii) the Act is inconsistent with the rights recognized in the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”) and the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”).
The Court’s Finding on the Granting of Mineral Claims and the Duty to Consult
In British Columbia, mineral exploration is regulated under the Mineral Tenure Act (the “Act”). Similar to mineral tenure regimes in other provinces, mineral claims can be registered over unclaimed Crown land and the holder of that mineral claim is granted various rights to explore and search for minerals. No consultation with potentially affected Indigenous groups occurs prior to a mineral claim being granted. Consultation only occurs at later permitting stages if the holder of the claim wishes to extract minerals.
In applying the test set out in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, the Court found that the duty to consult, flowing from s. 35 of the Constitution Act, 1982, is triggered by the current system of issuance of mineral claims under the Act. The Court determined that the current granting of rights regime causes adverse impacts upon: “areas of significant cultural and spiritual importance to the petitioners” and “the right of the petitioners to own, and achieve the financial benefit from, the minerals within their asserted territories” (para. 14).
The Court, however, did not find that the Act is unconstitutional. Importantly, in making such a determination, the Court opined on the purpose of section 8.1 of the Interpretation Act.[1] The Court found that section 8.1 requires that, in considering the interpretation of the Act, the court must apply the analysis in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 and, within that analysis, the Court is required to construe the Act “in a manner that upholds (as opposed to abrogating) the Indigenous rights of the petitioners”. As such, when “assessing whether the Act is constitutionally valid”, the Court “must construe it in a manner that upholds the Aboriginal rights enshrined in s. 35 and set out in UNDRIP” (para. 416-418).
Following such an analysis, it determined that the manner in which the Act was implemented did not meet the Crown’s duty to consult but that the Act was nonetheless constitutionally valid. The Act provided sufficient discretion to the Chief Gold Commissioner to allow for consultation with First Nations prior to the granting of mineral claims. The Court suspended its declaration that the province owes a duty to consult in the above-noted circumstances for a period of 18 months to allow the province to consult and design a regime for consultation under the existing Act or to amend the Act to allow for such consultation to take place.
The Court’s Finding on DRIPA
This was the first case to consider the application and interpretation of DRIPA.
Both the petitioners and the province agreed that DRIPA does not implement UNDRIP into the domestic laws of British Columbia, however, the Human Rights Commissioner for British Columbia, as an intervener, took the opposite position. In finding that DRIPA does not implement UNDRIP into the domestic laws of British Columbia, the Court noted that section 2 of DRIPA,[2] “was not intended to be a rights-creating, substantive provision” and that it “simply contains statements of purpose to be used for interpreting the substantive provisions of the legislation” (at paras 460-461). The Court concluded that UNDRIP remains a non-binding international instrument.
The Court also made important findings on the interpretation of Section 3 of DRIPA.[3] The petitioners argued, and sought a declaration, that the province had a legal obligation to address an inconsistency between UNDRIP and the laws of British Columbia, per Section 3 of DRIPA. The petitioners argued that whether there is inconsistency is a justiciable question.
The Court agreed with the petitioners that, in isolation, the question of “consistency” is justiciable. However, and despite such finding, it then noted that “it does not necessarily follow that the section either commands or invites judicial intervention” (para 486). In making this find, the Court noted that, among other things, section 3 does not impose a requirement of consistency and that it allows for the Indigenous peoples of British Columbia, and not the courts, to be involved in the determination of whether the province’s laws are consistent with UNDRIP.
[1] Section 8.1(2) and (3) state that “for certainty, every enactment must be construed as upholding and not abrogating or derogating from the aboriginal and treaty rights of Indigenous peoples as recognized and affirmed by section 35 and the constitution Act, 1982” and “every Act and regulation must be construed as being consistent with” UNDRIP.
[2] Section 2 of DRIPA states that the purposes of the Act are to: affirm the application of UNDRIP to the laws of British Columbia, contribute to the implementation of UNDRIP, and support the affirmation of, and develop relationships with, Indigenous governing bodies.
[3] Section 3 of DRIPA states that “in consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with” UNDRIP.
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