Terry Teegee: The mineral claims consultation framework is a step backward for B.C.​on March 26, 2025 at 6:53 pm

In 2023, the B.C. Supreme Court ruled in the Gitxaala v. British Columbia decision that the provincial government is required to consult with First Nations before registering claims under the Mineral Tenure Act by March 26, 2025. This ruling led to the creation of the mineral claims consultation framework.

Under the framework, mining companies can no longer simply register large swaths of land for mineral exploration. They must now notify First Nations of their intentions and allow a 30-day period for responses. This shift may result in an influx of approximately 10,000 additional placer and mineral applications annually, overwhelming often understaffed and under-resourced First Nations offices.

However, experts view these changes as merely a “distinction without a difference.” This type of consultation has been experienced before, most notably after the Haida decision in 2004, which required the Crown to consult and occasionally accommodate First Nations communities affected by industrial activities. As a result, First Nations are flooded with applications or “referrals” from various industries, including mining and forestry. Unfortunately, the current framework allows limited opportunities for First Nations to modify or prevent these permits, often rendering the consultation process ineffective.

Fast forward a decade to the 2014 Tsilhqot’in decision, where the Supreme Court of Canada recognized the Tsilhqot’in Nation’s ownership of approximately 1,750 square kilometres of land. This landmark ruling shifted the relationship between First Nations and the Crown from a mere “duty to consult” to a “duty to consent.” This new paradigm aligns with the province’s unanimous adoption of the UN Declaration on the Rights of Indigenous Peoples in 2019. Various processes have been initiated across B.C. to ensure that First Nations are consulted during the planning stages of industrial projects. Despite recognizing the challenges within the referral process, it appears that the province is now recommitting to a flawed system with the mineral framework, circumventing the substantive changes necessitated by years of legal battles and the provincial government’s spending millions fighting First Nations in court.

In the mining sector, there are examples of successful collaborations formed through respectful relationships and proactive decision-making that include First Nations. The 2020 agreement between the Lhoosk’uz Dené Nation, Ulkatcho First Nation, and the province, which supported the Blackwater Gold Mine, established a framework for sharing mineral revenues. Additionally, the Tahltan Central Government endorsed three operational mines, which constitute 41 per cent of mining exploration activities in B.C. The Declaration Act’s Section 7 serves as a foundational legal framework for establishing enduring, consent-based partnerships between rights holders and the Crown. In 2022, the Tahltan signed the first agreement under Section 7, marking a significant achievement in the implementation of the Declaration Act and solidifying shared decision-making processes for the Red Chris gold and copper mine in Tahltan Territory. This collaboration illustrates that when industry partners with First Nations under the UN Declaration framework, everyone can prosper.