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A new future for B.C. mineral claims – National Observer

October 12th 2023

On Sept. 26, the B.C. Supreme Court released a much-anticipated decision in a case brought by the Gitxaała and Ehattesaht Nations challenging the province’s free-entry mining system.

The court ruled that First Nations must be consulted before any mineral claims are made in their territories. The decision was heralded as a victory for the Gitxaała, Ehattesaht and other First Nations that have long challenged unfettered mineral claims on their territories. Such claims presently operate under the provincial Mineral Tenure Act, which dates back over a century and has its roots in the 1859 Gold Fields Act.

This ruling could drastically transform B.C.’s mineral tenure regime because the provincial government now has 18 months to reform the outdated mineral claims process in consultation with First Nations. The court decision is an important step towards recognizing Indigenous rights and title in the province.

But how the court arrived at its verdict may be as important as the decision itself and could affect the future of Indigenous Peoples’ governance over their territories and the province’s implementation of the 2019 Declaration on the Rights of Indigenous Peoples Act (DRIPA).

In affirming that First Nations are owed a duty to consult before any mineral claims are made on their territories, the court did not specifically invoke DRIPA. Rather, DRIPA was only used as an interpretive aid and the court based its arguments on Section 35 of the Constitution Act 1982 and common law developed through the precedent-setting 2004 Haida Nation v. B.C. (Minister of Forests) case.

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