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

B.C.’s public health restrictions on non-essential travel are reinforced by orders effective April 23, 2021 to stay within your own regional health authority except for essential travel such as work and medical appointmens. (B.C. government)
B.C.’s COVID-19 non-essential travel ban takes effect, $575 fines approved

Checks on highways, ferries between Lower Mainland, Vancouver Island, Interior

Carter Spring
Dynamiter’s Spring ready for next challenge with Ice Wolves

Submitted by EMANUEL SEQUIERA Kimberley Dynamiter Carter Spring is ready to make… Continue reading

Kimberley case counts not at the point for 18 years and older community vaccination, says Interior Health. (File photo)
Many factors considered for smaller community-wide vaccination: Interior Health

East Kootenay resort town’s COVID-19 situation not at the point of community-wide vaccination, say officials

Richard Desautel with supporters outside the courthouse in Nelson, B.C., in 2017. Photo: Bill Metcalfe
UPDATED: Sinixt win historic decision at Supreme Court of Canada

The decision essentially reverses a 1956 declaration the Sinixt were extinct

Mark Skage and his son Mica during the filming of a West Kootenay episode of Start ‘em Young. Photo: Submitted
TV show films West Kootenay hunting trip

Start ‘Em Young aims to encourage kids to get out in the wilderness

Canadian Prime Minister Justin Trudeau and United States President Joe Biden smile as they say farewell following a virtual joint statement in Ottawa, Tuesday, February 23, 2021. THE CANADIAN PRESS/Adrian Wyld
Trudeau pledges to cut emissions by 40% to 45% by 2030, short of U.S. goal

Trudeau announced target during a virtual climate summit convened by U.S. President Joe Biden

Nic Hume and his fellow paramedic stopped to rescue the victim of an Oak Bay hit-and-run – a duck – at the end of their shift Thursday morning. (Nic Hume/Facebook)
B.C. paramedics don’t duck a chance to help someone in need

Ambulance duo end a long shift by helping a distressed duck in Victoria suburb

As the snow in Manning Park melts, searchers are able to get a little farther each day. Photo submitted
Family resumes search for son missing in B.C.’s Manning park since October

‘This is our child, and we don’t give up on our children,’ said mother of Jordan, Josie Naterer

A health-care worker prepares a dose of the Pfizer-BioNTech COVID-19 vaccine at a clinic in Toronto on Thursday, January 7, 2021. THE CANADIAN PRESS/Nathan Denette
Canada buys 65M Pfizer booster shots for protection against COVID-19 variants

Prime Minister Justin Trudeau says the deal with Pfizer includes options to add 30 million doses in both 2022 and 2023, and an option for 60 million doses in 2024

A plan flew over the Lower Mainland with a sign expressing some Canucks fans’ discontent with the team’s general manager. (Niqhil Velji - Twitter Screenshot)
#FireBenning movement gets off the ground in Metro Vancouver

Canucks fans raise enough money to fly banner over Metro Vancouver asking for team GM to be canned

Join Black Press Media and Do Some Good
Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

The freed osprey keeps a wary eye on its rescuers after being deposited on its nest. (Photo credit: Greg Hiltz)
Hydro crew in Ashcroft gets osprey rescue call-out they won’t soon forget

Bird was tangled in baling wire hanging from a hydro pole, necessitating a tricky rescue

The Sandhill Cranes had been feeding in a slough near the railway tracks and took flight when were disturbed by atrain. Bob Whetham photo
Urban wildlife Part X: The Kootenay birds of 2021

The work of local photographers in the Kootenay Advertiser in 2021. Part X. With links to Parts I-IX

Minister of Public Safety and Solicitor General Mike Farnworth speaks to media at the Legislature in Victoria, B.C., on Monday February 5, 2018. THE CANADIAN PRESS/Chad Hipolito
B.C. officials to announce travel restrictions today to limit COVID-19 spread

Mike Farnworth is expected to give details of what the government views as essential travel

Most Read