British Columbia’s provincial flag flies on a flag pole in Ottawa, Friday July 3, 2020. Questions facing British Columbia’s mining sector shed light on what’s to come as the province works to match its laws with the United Nations Declaration on the Rights of Indigenous Peoples. THE CANADIAN PRESS/Adrian Wyld

British Columbia’s provincial flag flies on a flag pole in Ottawa, Friday July 3, 2020. Questions facing British Columbia’s mining sector shed light on what’s to come as the province works to match its laws with the United Nations Declaration on the Rights of Indigenous Peoples. THE CANADIAN PRESS/Adrian Wyld

B.C. mining laws raise questions as province looks to implement UN declaration

UNDRIP requires governments to get consent before taking actions that affect Indigenous Peoples

The relationships between Indigenous nations 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 Indigenous 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.

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 legislature 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 nations and resource-based sectors including mining, forestry, oil and gas, and hydropower.

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,” 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 Alexander, who is a member of the Kitasoo/Xai’xais First Nation on B.C.’s north coast.

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 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 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.

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 Indigenous 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, 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.

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.

READ MORE: New map details potential environmental threats from B.C. mines

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

Brenna Owen, The Canadian Press


Like us on Facebook and follow us on Twitter.

Want to support local journalism during the pandemic? Make a donation here.

Indigenousmining

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Workers were on scene to clean up the oil spill in Abbotsford at Trans Mountain Pipeline’s Sumas pump station in June 2020. (File photo by Shane MacKichan)
TSB releases final report on June 2020 oil spill in Abbotsford

Transportation Safety Board says pipeline fitting to blame for spill of up to 190K litres

Surrey RCMP are seeking the public's help to locate three puppies stolen from a South Surrey home on April 10. (Surrey RCMP photos)
UPDATE: One of three puppies stolen from South Surrey recovered

American Bulldog puppy recovered after being sold at Mission car show

About 80 demonstrators walked through Hope with signs in support of saving the Station House on March 23, 2021. (Photo/Christian Ward)
Public hearing now planned for Hope’s Station House decision

Council has now taken steps to remove heritage status from historic building

Chilliwack General Hospital. (Jenna Hauck/ Progress file)
Chilliwack General Hospital gets all-clear from Fraser Health as outbreak ends

The latest outbreak was 20 days from the start, on March 25, to being declared over on April 13

Cemetery staff installed the wrong headstone on the grave of Jima Kiir, even though the headstone’s photo did not match with the photo placed on the grave. (Submitted photo)
Abbotsford mother upset city placed wrong headstone on son’s grave

Cemetery staff mix up graves of 2 recently deceased men from South Sudanese community

Burnaby MLA Raj Chouhan presides as Speaker of the B.C. legislature, which opened it spring session April 12 with a speech from the throne. THE CANADIAN PRESS
B.C. NDP promises more health care spending, business support in 2021 budget

John Horgan government to ‘carefully return to balanced budgets’

In Ontario, COVID-19 vaccine clinics have been set up at local mosques. (Submitted photo: Rufaida Mohammed)
Getting the vaccine does not break your fast, says Muslim COVID-19 task force

Muslim community ‘strongly’ encouraging people to get their shot, whether or not during Ramadan

Shannon Claypool, president of the Cloverdale Rodeo & Exhibition Association, stands outside the Cloverdale Rec. Centre. The rec. centre has been set up as a mass vaccination site by Fraser Health and the Association has decided to cancel the rodeo in order to offer the fairgrounds for public parking. (Submitted)
Cloverdale Rodeo cancelled

Fairgrounds to be used as public parking for mass vaccination site at Cloverdale Rec. Centre

A plane is seen through the window on the tarmac of Vancouver International Airport as the waiting room is empty. THE CANADIAN PRESS/Jonathan Hayward
100+ international travellers who landed in B.C. refused to quarantine

The Public Health Agency of Canada says it issued $3,000 violation tickets to each

A health-care worker holds up a vial of the AstraZeneca Covishield vaccine at a COVID-19 vaccination clinic in Montreal, Thursday, March 18, 2021. THE CANADIAN PRESS/Paul Chiasson
PHAC receives first report of blood clot linked to AstraZeneca

The federal agency says the person is now recovering at home

A real estate sign is pictured in Vancouver, B.C. THE CANADIAN PRESS Jonathan Hayward
1 in 3 young Canadians have given up on owning a home: poll

Data released Monday says 36% of adults younger than 40 have given up on home ownership entirely

Dr. Bonnie Henry gives her daily media briefing regarding Covid-19 for the province of British Columbia in Victoria, B.C, Monday, December 7, 2020. THE CANADIAN PRESS/Jonathan Hayward
B.C. urges people to stay in their neighbourhoods, discourages out-of-household meet-ups

Dr. Bonnie Henry says there should be no travel, even to the next city over

Dr. E. Kwok administers a COVID-19 vaccine to a recipient at a vaccination clinic run by Vancouver Coastal Health, in Richmond, B.C., Saturday, April 10, 2021. THE CANADIAN PRESS/Jonathan Hayward
Most Canadians plan to get COVID-19 vaccine, but safety fears drive hesitancy: poll

This comes as confidence in governments is plummeting in provinces being hit hardest by the pandemic

Marathon of Hope runner Terry Fox is shown in a 1981. (THE CANADIAN PRESS/CP)
Terry Fox’s legacy of resilience resonates during COVID-19 crisis, says brother

Fred Fox said his brother’s legacy of resilience has taken on renewed resonance as COVID-19 rages on

Most Read