Gitxaała Mineral Tenure Decision – a Significant Victory for the Duty to Consult, but DRIPA is Apparently “Vacuous Political Bromide”

Justice Ross of the BC Supreme Court released his reasons for decision our client, Gitxaała Nation’s, judicial review challenge to BC’s archaic, colonial free-entry system of mineral tenures.  The system allows miners to register mineral claims for a mere $1.75 per hectare over huge swathes of unceded First Nations territory throughout BC, including Gitxaała Territory, without notice, consultation, or consent.

Ng Ariss Fong, Lawyers and West Coast Environmental Law Acted for Gitxaała at the judicial review hearing.

Ross J found this system unconstitutional.  He granted a declaration that it is inconsistent with the Crown’s obligations.  This is a significant victory for Gitxaała, Ehattesaht First Nation (whose own petition for judicial review was joined with Gitxaała’s), and First Nations throughout the Province.  The decision gives the Province 18 months to reform the mineral tenure system to allow for consultation with First Nations prior to mineral claim registration. It is long overdue. 

The decision has many positive aspects that advance the law regarding the duty to consult and Aboriginal rights under section 35(1) of the Constitution Act, 1982, including: 

• Ross J recognized that cultural and spiritual impacts to First Nations are adverse impacts that trigger the Crown’s duty to consult (paras 320-331). In one notable passage, Justice Ross said (emphasis added):
• [325]     I am aware that few readers of these reasons, outside of the members of Ehattesaht and Gitxaala, will have an appreciation for Gitxaala spiritual beliefs. For the context of this discussion, I am attempting to consider these submissions within a cultural and spiritual context that a wider group may appreciate. For example, I transpose the petitioners’ position onto the position that might be taken by groups within the Catholic faith if a mineral claim were granted at the Sanctuary of Our Lady of Lourdes in France, or by groups within the Jewish faith if the same were granted at the Western Wall in Jerusalem. On a more local level, what position would be taken if a mineral claim was granted in a cemetery? In my opinion, these examples assist in placing the petitioners’ positions in context.
• This is an important affirmation that places the spiritual and cultural beliefs, and associated significant locations, of First Nations on equal footing with the beliefs of major Western religions. In Gitxaała’s case, all living beings in Gitxaała Territory have their own naxnox(plural naxnanox), which means a supernatural being or nature spirit. Naxnanox have spanaxnanox (plural of spanaxnox, which means a naxnox den or territory) in Gitxaała Territory. The Court accepted that “the disturbance of any of these dens, which would be occasioned by mineral exploration, would constitute the disturbance of a spiritual place that cannot be repaired” (para 324).

• Ross J rejected the Province’s argument that, despite Delgamuukw explicitly stating, “Aboriginal title includes mineral rights”, Aboriginal title may not actually include mineral rights. The Province’s submission in this regard was surprising, contrary to the thrust of the jurisprudence, and ultimately untenable. The Court accepted that the “loss of minerals reduces the value of the territory and, thus, adversely affected Aboriginal rights and title” (para 396)
• Ross J applied s 8.1 of the BC Interpretation Act in his statutory interpretation analysis of the Mineral Tenure Act. Section 8.1(1) of the Interpretation Act says that “every enactment must be construed as upholding and not abrogating or derogating from the aboriginal and treaty rights of Indigenous peoples…”, and section 8.1(2) says “[e]very Act and regulation must be construed as being consistent with the Declaration [i.e. UNDRIP]”. 
• In doing so, the Court rejected the Province’s argument that “UNDRIP’s interpretive utility plays only a limited role in statutory interpretation … UNDRIP should be considered at the end of the interpretative exercises, simply as a means to support or confirm a particular interpretative result” (para 411). Instead, Justice Ross concluded that the provision says what it purports to: when interpreting a statute, such as the MTA, the Court is “required to construe the MTA in a manner that upholds (as opposed to abrogating) the Indigenous rights of the petitioners. In other words, if there are two (or more) possibly valid interpretations of the MTA, then I [i.e. the Court] am to construe the Act in a manner that is consistent with UNDRIP (i.e., that protects Indigenous rights) (para 416). 
• As a result, Justice Ross concluded that the MTA itself is not the problem, since nothing in it prevents the Crown from consulting with First Nations before registering mineral claims. The Crown has simply chosen not to do so. Ross J said of the Chief Gold Commissioner’s (the administrator of the mineral tenures system) position that it doesnot have discretion to consult with Indigenous groups: “that is simply wrong” (para 427).

• Ross J’s declaration applies not only to Gitxaała and Ehattesaht, but throughout the Province. This definitively means that the Crown has a duty to consult all affected First Nations prior to registering mineral claims on their territories.

In a word, the decision confirms what First Nations, environmental groups, academics and lawyers have been saying for decades: BC’s mineral tenure system is badly out of date, ignores the rights of Indigenous peoples, and must be reformed.  Now, there is a legal requirement for that reform. 

The decision, however, has several concerning aspects as well, including:

• Although Ross J concluded the Crown does owe a duty to consult, he rejected the proposition that adverse impacts on Gitxaała’s legal order and governance could give rise to a duty to consult (paras 305-319). This is troubling, because it perpetuates a “frozen rights” view of Indigenous rights. At para 305, the Court says, “The role of the province is to preserve the territories such that each First Nation can exercise its Aboriginal title rights after Aboriginal title is settled.”  Seen in this light, the Province is paternalistically “preserving” unceded First Nations territory until a First Nation gains Crown recognition of their Aboriginal title and governance. But this ignores the living governance system of Gitxaała and other First Nations. Their governance does not rest wrapped in plastic in a freezer, waiting to be pulled out and thawed when the Crown approves. Gitxaała has governed, is governing, and will continue to govern Gitxaała Territory pursuant to ayaawx (Gitxaała law). The evidence before the Court was that Gitxaała viewed the mineral tenure regime as “an attack on Gitxaała society” (para 231), but the Court’s decision effectively side-steps this issue.
• The Court’s declaration that effectively means the Province must consult before granting mineral claims is suspended for 18 months. That means, for the next 18 months, miners throughout BC may continued to stake mineral claims without consultation. They also have a perverse incentive to do so, before they’re required to respect Indigenous rights, because as this decision confirms, mineral claims have value. After 18 months, existing mineral claims will not disappear. If someone stakes a claim on or around a spiritually significant site during this period, they will have a valuable interest that they do not need to give up without compensation.
• Relatedly, the Court did not quash any mineral claims at issue in the judicial review.  In so doing, Ross J made problematic statements concerning the nature of the duty to consult (paras 546-550). In particular, he accepted the “forward looking” nature of the duty to consult, relying on Rio Tinto’s statement that “Past wrongs, including previous breaches of the duty to consult, do not suffice”. However, in Rio Tinto those “past wrongs” (in that case, the construction of the Kenney Dam and resulting disruption of the Nechako river and fishery in the 1950s) were not at issue. The issue was a much more recent Energy Purchase Agreement that the SCC concluded did not, in itself, adversely affect Aboriginal rights. In contrast, here the issue was precisely a lack of consultation prior to granting certain mineral claims in Gitxaała Territory. A much more recent decision of the SCC, Clyde River, clearly states that “…any decision affecting Aboriginal and treaty rights made on the basis of inadequate consultation will not be in compliance with the duty to consult, which is a constitutional imperative. Where challenged, it should be quashed on judicial review” (quoted at para 534 by Ross J).  Ross J did not directly address the statement from Clyde River, but he did say “the fault in the system lies, not in the granting of individual mineral claims, but in the higher-level decision making relating to the CGC’s [i.e. Chief Gold Commissioner’s] discretion to consult with First Nations. Mineral claim registrations are not per se decisions, but rather interests issued in the past under a then-presumptively valid legislative scheme. The de facto doctrine applies …” (para 548). As described by Ross J at para 545, that doctrine “gives effect to the justified expectations of third parties who relied upon the government actors administering invalid laws” (emphasis added). 
• The difficulty is that Ross J also concluded that there are no invalid laws. The MTA is not unconstitutional. It allows for consultation. No government actor administered an invalid law. In the result, Gitxaała and Ehattesaht, as individual petitioners, have no remedy against unconstitutional decisions made without consultation under valid legislation. This is inconsistent with Clyde River and, in any case, ignores the fact that allduty to consult cases are about “past wrongs”, because in order to bring a petition for judicial review or an action, something wrong must already have occurred. Judicial reviews of decisions that breached the duty to consult occur all the time. Those decisions are precisely about past decisions. 

• Finally, this is the first decision by a court about the legal meaning of the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”), which the Province passed to much fanfare in 2019.  Ross J in effect answered the question of Kent J in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc at para 212: “[i]t remains to be seen whether the passage of UNDRIP legislation is simply vacuous political bromide or whether it heralds a substantive change in the common law respecting Aboriginal rights including Aboriginal title” (referenced by Ross J at para 434 as well).  Ross J’s answer, sadly, appears to be that DRIPA is “simply vacuous political bromide”.
• The court flatly rejected the argument of the intervenor, BC’s Human Rights Commissioner (“BCHRC”), that DRIPA implements UNDRIP into domestic law in BC such that UNDRIP now has the full force and effect of law.  The BCHRC relied on s 2(a) of DRIPA, which says that the purposes of DRIPA include “to affirm the application of the Declaration [UNDRIP] to the laws of British Columbia”. The Court concluded that s 2 is a “purpose statement” and not a substantive provision that creates rights or imposes obligations (para 457). Its sole effect, apparently, is to hold “statements of purpose to be used for interpreting the substantive provisions of the legislation” (para 461).
• This is an unfortunate surprise to many Indigenous groups in BC (and, indeed, throughout Canada; the federal UNDRIPA contains nearly identical wording).  One might wonder what the purpose of putting UNDRIP into a statute was, if not to implement UNDRIP. What, then, is the difference between a press release from the Province promising to use UNDRIP as its framework for reconciliation, and DRIPA? 
• The problem continues, however, in the Court’s ruling with respect to section 3 of DRIPA. That section is not a “purpose statement” and therefore is indeed a substantive provision.  It reads: “In consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.”  Gitxaała argued that s 3 imposes a statutory duty on government (it “must take all measures necessary…”), triggered when the laws of BC are inconsistent with UNDRIP. And the question of inconsistency is a justiciable question, i.e., it is legitimate and appropriate for the courts to adjudicate a dispute about inconsistency.
• The Court disagreed, but in a confusing way.  Ross J accepted that the question of consistency is justiciable (para 486); however, he concluded that “s. 3 was not intended to invoke the courts to adjudicate every instance where the laws of BC may be inconsistent with UNDRIP” (para 488).  This is, with respect, an opaque passage. It is not clear how s 3 can be both justiciable and “not intended to invoke the courts to adjudicate…”, since justiciability precisely means that it is legitimate for the courts to adjudicate.  
• Ross J did conclude that s 3 does obligate the province to consult and cooperate with the Indigenous peoples of BC, and that failure to do so “would constitute a justiciable breach of the government’s obligations”. Since that question was not before him, it is left for another day (para 490).  Unfortunately, it is difficult to see how any dispute about the province’s obligation under DRIPA s 3 would not involve a dispute about whether a particular law is consistent with UNDRIP, unless, of course, the duty on the province in s 3 is purely procedural – requiring only consultation but allowing the government to eventually impose its own view of “consistency” on Indigenous peoples. We can only hope that the latter is not the case.  But the decision does not bode well in this regard.

The parties have 30 days to decide whether to appeal all or parts of Justice Ross’ decision. We will update this blog once our client has made a decision.

Author: Ruben Tillman