By Saul Joseph, Melanee Bryniawsky and Shiona Nickel

On September 26, 2023, the Supreme Court of British Columbia released Gitxaala v. British Columbia (Chief Gold Commissioner)(“Gitxaala”)[1] which substantially adds to the growing body of duty to consult jurisprudence and is the first to contemplate the application of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) in British Columbia.

Duty to Consult

Gitxaala and Ehattesaht First Nations challenged the Province of British Columbia’s (the “Province”) current mineral tenure system, which allows for proponents to register a mineral claim over any unclaimed provincial Crown land. Through this registration, the mineral claim holder is automatically afforded various rights, including the right to explore and dig up the claim area to search for minerals. If minerals are found, the mineral claim holder must apply for further approvals under the Mines Act for commercial extraction. It is not until these later approvals that consultation with Indigenous Nations is contemplated.

The Court ultimately found the existing mineral tenure registration system as a whole was a breach of the Province’s constitutional duty to consult with Indigenous peoples. Where any decision or action by the Province may adversely impact Aboriginal or Treaty Rights, the Province is bound by the constitutional duty to consult with the potentially impacted Indigenous Nations. In this case, the Court and the Indigenous Nations framed the impugned decision as a systemic series of higher-level decisions (or non-decisions) that have the effect of allowing for the registration of mineral claims without consultation.

The Court issued a declaration mandating that the Province consult with First Nations before granting mineral claims. However, it suspended the implementation of that declaration for 18 months to allow the government to consult and design a regime that allows for consultation. The Court also noted that any mineral claims already granted remain valid.

DRIPA

In addition to the claim that the mineral tenure registration system was a breach of the Crown’s duty to consult, the First Nations claimed that it was also inconsistent with UNDRIP, which had been implemented into B.C. law through the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”) [2], in 2019.

The Court acknowledged that the “human rights character” of DRIPA requires that the legislation be interpreted expansively and that section 8.1 of the Interpretation Act requires that the Court interpret Provincial enactments “in a manner consistent with the standards set out in UNDRIP.”

With respect to the implementation of UNDRIP, the Court made a number of important findings. Primarily, the Court found that:

1. the Province’s Declaration on the Rights of Indigenous People Act (“DRIPA”) does not implement UNDRIP into B.C. law;
2. the objectives and purposes set out in Section 2 of DRIPA are stated broadly such that it was “not intended to be a rights-creating, substantive provision;”[3] and
3. Section 3 of DRIPA, which states that the Province, “in consultation and cooperation with the Indigenous peoples in British Columbia must take all measures necessary to ensure the laws of British Columbia are consistent with [UNDRIP]” does not create clear justiciable rights.

The Court noted that because section 3 of DRIPA starts with “in consultation with the Indigenous peoples of British Columbia”, it is Indigenous peoples, rather than the courts, who are involved in determining whether the Province’s laws are consistent with UNDRIP. The Court also found that the section does not use any imperative language that would make “consistency” a requirement under DRIPA. Because of this, the Court ultimately concluded that DRIPA does not call upon the courts to adjudicate instances where laws may be inconsistent with UNDRIP. Instead, the Court found that the imperative obligation under section 2 requires that the Province “consult and cooperate” with Indigenous peoples and that a failure to do so may be a justiciable breach of the Province’s obligations. However, the Court did not make any findings on the degree to which those failures would be justiciable.

Finally, rather than DRIPA having the effect of implementing UNDRIP into B.C. law, the Court found that “DRIPA contemplates a process wherein [the Province], ‘in consultation and cooperation with the Indigenous peoples in British Columbia’ will prepare, and then carry out, an action plan to address the objectives of UNDRIP.”[4]

Implications

For now, all permits will remain in force and for the next 18 months the mineral tenure system will continue to operate as it has been. Going forward, acquiring mineral exploration permits will likely become more demanding for miners, the Province, and First Nations under the reformed system, as automatic registration of mineral claims will no longer be possible. We will expect to see a consultation process that, in addition to following the duty to consult jurisprudence, seeks to further the implementation of UNDRIP.

For Indigenous Peoples in B.C. and the Province, this decision has significant implications. With the finding that DRIPA does not implement UNDRIP and that section 3 does not create justiciable rights, Indigenous Peoples may not have any legal recourse where the Province’s laws, decisions, and policies do not align with UNDRIP.

The findings by the Court on the application of DRIPA are confusing, in part, because of broad and unclear language used in legislation. On the one hand, Section 8.1 of the Interpretation Act says that “every enactment must be construed as being consistent with UNDRIP.” However, on the other hand, the Court found there is no positive obligation on the Province under DRIPA to achieve such consistency.

From a legal certainty perspective, this decision essentially confirms that DRIPA may be no more than “vacuous political bromide.”[5] If there is to be meaningful implementation of UNDRIP in B.C. it will now be incumbent on First Nations and the Province to come together to determine new mechanisms or to reaffirm what the plain-reading of DRIPA seemed to envision – a collaborative relationship built on consultation and cooperation that would see all laws fully compliant with UNDRIP.

Call to Action

While this decision continues to build and clarify the body of jurisprudence on Aboriginal and Treaty rights and the Crown’s duty to consult and accommodate Indigenous peoples, it draws attention to crucial limitations in DRIPA, that ultimately leave proponents, Indigenous peoples and government agencies left to grapple with its interpretation in highly discretionary manners. We anticipate and urge the B.C. legislation to amend DRIPA in response to this decision to provide clearer legal obligations on the Province to implement UNDRIP into B.C. law as follows:

• clarify questions surrounding justiciability or create additional mechanisms to hold the Province accountable to its commitments under DRIPA;
• add imperative language to implement the purposes set out in section 2;
• clarify whether UNDRIP applies today across all legislation; and
• indicate how the Province will “construe” enactments that have yet to be amended as being “consistent with UNDRIP” per section 8.1 of the Interpretation Act.

 

References

[1] 2023 BCSC 1680

[2] SBC 2019 c. 44

[3] Gitxaala, para 461

[4] Gitxaala, para 466

[5] Gitxaala, para 434