British Columbia Court rules Indigenous rights legally enforceable in mineral claims staking  

The British Columbia Court of Appeal (BCCA) determined in a new ruling on Friday that the province’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) incorporates the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and creates legally enforceable obligations.  

The BCCA case, Gitxaala v. British Columbia (Chief Gold Commissioner), was a partial appeal by the Gitxaala and Ehattesaht First Nations, following a 2023 BC Supreme Court (BCSC) decision that ruled the province’s automatic online mineral claim system breached its constitutional duty to consult, but had limited interpretation of DRIPA. 

The Gitxaala Nation filed a legal challenge in 2021 in Supreme Court seeking to overturn the province’s granting of multiple mineral claims from 2018 to 2020 on Banks Island, in their territory. The issue centered around whether the Mineral Tenure Act is consistent with UNDRIP. 

In September 2023, BC Supreme Court declared that automatic staking of mineral claims without First Nations consultation breached the Crown’s constitutional obligations.  A judicial review ruled that the government of British Columbia owes a duty to consult indigenous peoples with asserted rights and title when granting mineral claims. 

The lower court, however, found that DRIPA was not justiciable (enforceable).   

Friday’s decision overturns the lower court’s finding and marks the first time an appellate court has ruled on the enforceability of DRIPA.  

The issue centered around whether the Mineral Tenure Act is consistent with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). 

Within a panel of judges, the BCCA majority held that the BCSC judge erred in finding that DRIPA did not implement UNDRIP into domestic law or create legally enforceable rights. The BCCA stated that all B.C. laws and regulations must now be construed as being consistent with UNDRIP. 

The court concluded that the lack of an opportunity to consult prior to granting mineral claims means that the legislative scheme is not consistent with UNDRIP. 

In 2024, The Association for Mineral Exploration (AME) formally applied for intervener status in the ongoing appeal of Gitxaala Nation v. British Columbia The Gitxaala Nation and Ehattesaht First Nation had brought the case against B.C.’s online mineral claim-staking system.  

In a statement on Friday, AME CEO Todd Stone said the Association “is proud to have brought the voices of our members to the table in such an important venue.”  

“As we review the decision and the likelihood of future appeals, we will carefully consider our approach,” Stone said.  

Gitxaała Chief Councillor Linda Innes issued a statement in response to Friday’s decision.  

“This is an exciting victory not only for Gitxaała but for all Nations. Justice is catching up to the truth with today’s BC Court of Appeal decision,” Innes said.  

“We have said all along that BC’s out-of-date, colonial mineral tenure regime violates Canada’s own laws, the UN Declaration on the Rights of Indigenous Peoples and our Gitxaała laws. Now BC’s highest court has agreed.”