Skip to main content
Canada’s most-awarded newsroom for a reason
Enjoy unlimited digital access
$1.99
per week
for 24 weeks
Canada’s most-awarded newsroom for a reason
$1.99
per week
for 24 weeks
// //

The relationships between Indigenous peoples and British Columbia’s mining sector are set to change as the province works to match its laws with the United Nations Declaration on the Rights of Indigenous Peoples.

Mining Minister Bruce Ralston says B.C.’s “formal relations” with First Nations and their participation in the sector are already a “strong asset” for companies and investors considering mineral operations in the province.

“Investors are looking for signs that things are being done right, things are being done fairly,” he told a news conference earlier this month.

Story continues below advertisement

However, details of when and how B.C.’s mining laws may change because of the declaration aren’t yet known. It’s expected to take years to fully implement the act adopting its 46 different articles, which was passed in the Legislative Assembly in November, 2019.

In the meantime, companies must chart their own path to comply with the declaration or risk legal uncertainty, said Merle Alexander, a Vancouver-based lawyer whose work focuses on Indigenous peoples and resource-based sectors including mining, forestry, oil and gas, and hydro power.

Under B.C.’s Mineral Tenure Act, for example, it costs just $1.75 per hectare to register a mineral claim through an online portal.

“I could go and just randomly choose 50 different territories to stake claims in right now and I would have never even had any engagement with any First Nation, and I’d already have an interest in their land,” Mr. Alexander said.

“You get the ability to sort of literally go out there and start, like, digging holes and trenching without really any consultation whatsoever.”

The UN declaration requires governments to obtain free, prior and informed consent before taking actions that affect Indigenous peoples and territories.

“You’d be pretty hard pressed to argue that this online click-of-a-mouse exploration mining tenure system … is somehow compliant with a free, prior and informed consent process,” said Mr. Alexander, who is a member of the Kitasoo/Xai’xais First Nation on B.C.’s north coast.

Story continues below advertisement

Once companies decide a mineral claim is worth exploring further they usually recognize the importance of engaging with First Nations, he said.

The Supreme Court of Canada has already established the duty to consult, meaning lawmakers must have dialogue with Indigenous governments about proposed decisions that could negatively impact their rights and title.

But Mr. Alexander likened the Crown to an absentee parent, often leaving it up to First Nations and companies to figure out consultation processes and agreements before the province approves permits for proposed projects.

“Most companies have advanced to at least realize that they have to sort of pick up the ball where the Crown has left it,” he said in an interview.

“They take the delegated duty to consult and they get into the community and start fulfilling it themselves,” he said, pointing to contractual solutions to legal uncertainty such as benefit agreements with First Nations.

The Crown’s failure in its duty to consult affected First Nations can sink a project, said Mr. Alexander, noting that’s what sent Enbridge’s proposed Northern Gateway pipeline back to square one in 2016 before it was shelved permanently by the federal government later that year.

Story continues below advertisement

But the duty to consult leaves room for interpretation, he said, while the declaration is a statutory requirement for the province to ensure its laws align with the different articles in the UN Indigenous rights declaration.

Designed to facilitate consent-based agreements between the province and First Nations whenever their rights are affected, B.C.’s act will likely lead to clearer and stronger standards around obtaining consent, he said.

It should create a path to greater certainty – one that’s outside the courts – for industries, such as mining, forestry, and natural gas, he said.

B.C.’s environmental assessment process for mines and other major proposed projects is further along than the mineral tenure and exploration system for compliance with the UN declaration, Mr. Alexander noted.

But it’s not in complete compliance, he said, because the 2018 Environmental Assessment Act requires that officials seek to achieve “consensus” with affected nations rather than work toward consent.

Under the act, the government is required to consider a nation’s consent or lack of consent and must publish its reasoning for issuing an environmental assessment certificate for a project if a nation does not consent.

Story continues below advertisement

The Mining Association of B.C. issued a statement when B.C.’s declaration act was tabled in Legislature, saying it was optimistic that with proper implementation, adoption of the act would “support and advance reconciliation and may lead to greater certainty on the land base.”

B.C. is currently in talks with Indigenous groups about the implementation of the declaration act. The province aimed to release a plan identifying priority areas for legal reform last year, but the COVID-19 pandemic has caused some delay and it now expects to have a draft ready for feedback this spring, Indigenous Relations Minister Murray Rankin said.

This story was produced with the financial assistance of Facebook and Canadian Press News Fellowship.

Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.

Your Globe

Build your personal news feed

  1. Follow topics and authors relevant to your reading interests.
  2. Check your Following feed daily, and never miss an article. Access your Following feed from your account menu at the top right corner of every page.

Follow topics related to this article:

View more suggestions in Following Read more about following topics and authors
Report an error
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

If you do not see your comment posted immediately, it is being reviewed by the moderation team and may appear shortly, generally within an hour.

We aim to have all comments reviewed in a timely manner.

Comments that violate our community guidelines will not be posted.

UPDATED: Read our community guidelines here

Discussion loading ...

To view this site properly, enable cookies in your browser. Read our privacy policy to learn more.
How to enable cookies