Consultation in the Claims Registration Process: BC moves towards FPIC

British Columbia is gradually becoming one of the most advanced mining jurisdictions in the world with regards to free, prior and informed consent (FPIC).

In this blog post, we’ll provide a brief background and a summary of the process to date for modernizing the Mineral Tenure Act (MTA) starting with the claims registration process, and ensuring that the rights and title of First Nations are accommodated by the government as it reinvents the context in which mining happens. Then we’ll share some of the work that we’re doing at Inspire Resources to help with this important transformation of mining.

Let’s not mince words: the changes coming in the mineral tenure regime also bring a dose of fear. That fear may be personal such as concerns about my ability to engage with First Nations, or the fear of not getting my claim registered, but part of the fear is about how the recognition of Aboriginal rights has changed in our lifetime.

Some in the mining industry feel that UNDRIP and the Gitxaała decision represent an expansion of Indigenous rights, but a historical review shows that our legal system is only now recognizing the rights that have aways been there.

The coming changes reflect a century’s worth of conflict over the existence of rights for Indigenous peoples in BC. To show how far we have come, exactly 165 years before we posted this blog, the British Columbia Gold Fields Act enabled prospectors to acquire a certificate that gave them “the right to enter without let or hindrance upon any of the waste lands of the Crown, not for the time being lawfully occupied by any other person, and to mine in the land so entered upon.” The Gold Fields Act reflected the cultural, economic and legal interests that were imported by my British ancestors.

Following this Act and the Indian Act, Indigenous peoples’ petitions and complaints were suppressed for 75 years, and eventually seen as so dangerous that in 1927 Indigenous peoples and First Nations were forbidden from hiring lawyers or legal counsel. In many ways, the current generation of miners are inheriting the consequences of past infringements, including the Gold Fields Act that successfully generated significant revenues for the non-Indigenous economy.

But there are also costs of not following our own laws and the impact has been felt economically, in costly litigation, in protests and disruption of economic activity. Most of all, the suppression had its most significant impact on Indigenous peoples themselves: depriving them of economic rights and opportunity and deepening the disproportionate impact on individual and community health and well-being.

Since the ban on engaging lawyers was lifted in 1952, the courts have not expanded the rights of First Nations and Indigenous peoples. Rather, they have recognized and defined those rights. Some of the notable cases include:

• Sparrow in 1990 recognized and affirmed that Aboriginal and treaty rights exist;

• Delgamuukw in 1997 elaborated on the nature of Aboriginal title, recognizing it as a right to the land itself, not just the right to specific activities on the land. The court also emphasized the need for meaningful consultation with Indigenous peoples when their rights are affected;

• The Tsilhqot'in Nation decision in 2014 clarified that Aboriginal title includes the right to decide how the land is used, the right of enjoyment and occupancy, and the right to economic benefits of the land. The case also reaffirmed the need for the Crown to obtain consent from Indigenous peoples for developments on their land unless there is a pressing and substantial objective that justifies infringement.

The latest step forward in the recognition of Indigenous rights is the decision of the BC Supreme Court on the subject of a challenge to the Mineral Tenure Act by Gitxaała and ʔiiḥatisatḥ (Ehattesaht) First Nations. In that case, the court found that “consultation is required prior to transferring rights (to an element of ownership of minerals) to a third party.”[1]

The Supreme Court directed the province to develop a new claims consultation approach by March 2025.  The court also found that “the concept of “adverse impacts” must be viewed through the lens of the First Nation,”[2] and this was only knowable through engagement that is genuine, good-faith and includes accommodation of well-founded and significant concerns.

In the background, the British Columbia government’s passing of the Declaration on the Rights of Indigenous Peoples in 2019 and its announced Plan to align provincial legislation with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2022 clarified the government’s intention to modernize the Mineral Tenure Act (MTA) which provides a legal and procedural framework for staking claims and converting them to a lease.

How is the Mineral Claims and MTA modernization process moving forward?

 The provincial government carried out an initial consultation on mining claims by engaging in a series of meeting with First Nations in 2019. You can find a report that captured feedback from those sessions here.   

Following the Gitxaała decision, the Ministry is pursuing the work of modernizing using a “two track” approach.

One track will focus on the short-term requirement of the Gitxaala decision to ensure adequate consultation when claims are staked. The Ministry for Energy, Mines and Low Carbon Innovation (EMLI) is focusing currently on the duty to consult as required by the Gitxaała decision. The work discussed here will result in a new mineral claims consultation framework (MCCF).

As for the other track, the Ministry is also preparing to modernize the Mineral Tenure Act so that it is consistent with UNDRIP. The BC Minister for Energy, Mines and Low Carbon Innovation announced in March 2024 that modernization of the Mineral Tenure Act will bring it into alignment with UNDRIP.

To develop a new MCCF, the Ministry is leading with a government-to-government approach (province and First Nations), while keeping the mining industry engaged to seek solutions that will be functional for all parties. The Ministry is currently in information / fact gathering phase to redraft its MCCF, which includes:

• Understanding what’s important for First Nations (supplementing the 2019 engagement)

• Understanding what’s important for industry stakeholders

• Collecting ideas and suggestions in the process.

The Ministry has also held discussions with First Nations, First Nations Leadership Council and the First Nations Energy and Mining Council. On the industry side, the Ministry team is meeting with mining associations including the Association for Mineral Exploration of BC (AME BC) and the Mining Association of BC. They have also held information and feedback sessions for others interested in the changes to the mining claims consultation framework (MCCF) and the Mineral Tenure Act. We will summarize the conversations and for more information you can check out the website that has been created for MTA reform here.

The Association for Mineral Exploration of BC (AMEBC) is holding regular meetings with its members, and you can find their member consultation report on the MTA modernization process and impacts here. 

The Current Mineral Claims Process

BC’s current claims process for registering a claim in BC includes:

1.     Using the Mineral Tenure Online system which enables clients to acquire and maintain mineral and placer claims by selecting available cells using a digital map provided by the Ministry;

2.     Registering a claim is automatic so long as there are no restrictions on the property;

3.     Does not require consultation, and this means that there is no requirement for claims registrants to understand the values, concerns and priorities of the First Nations nearby, who may have title or rights;

4.     Protects claims-registrants through immediacy, so there is no disclosure to competitors. This is considered important to the industry who identify a registered claim as a form of intellectual property;

5.     Enables registrants to do work on a claim to continue their registered claim. No discussion of impact other than restrictions in the MTA are required, until permits are being submitted to convert the claim into a lease.

Four Areas of Focus for the Mineral Claims Consultation Process:

The Ministry for Energy, Mines and Low Carbon Innovation (EMLI) identified four areas of discussion to enable feedback and suggestions from all perspectives, including:

1.     Notification and information sharing:

Currently, First Nations are not notified of claims being made in their territories, and the province provides information only to the registrant informing them of which First Nations would be appropriate to consult. No one other than the claimant knows what activities will be undertaken on the claim.

Information requirements are set by Chief Gold Commissioner, so the Ministry is exploring what additional information would need be collected to support a consultation process to determine whether a claim could be registered. It is possible that each First Nation will want specific information that could be specific to the First Nation considering a claim.

The questions that the Ministry is exploring include:

• What are the conditions by which a claim can be registered?  

• At what point will First Nations be notified?

• What level of consultation will be required?

• Will consultation be proportionate to the potential impact of a claim?

• How can consultation be carried out with a minimum of time and effort? The Ministry is considering online consultation approaches as one of many options.

2.     Management of the volume of referrals

There are between 5,000 and 8,000 claims registered each year in BC. Currently there is no referral to First Nations at time of registration. Even without the duty to consult, the volume is difficult for many First Nations, who have identified the need for more staff capacity and resources to help assess claims where consultation is happening.

Since the Ministry is ultimately responsible for consultation, there are capacity issues for the Ministry as well as First Nations. Some ideas the Ministry is exploring include “batching” claims so that groups of claims are assessed instead of one-off. Another option is limiting the number of new claims, which could vary across geography or in proportion to the capacity of each First Nation in the Province.

3.     Potential Impacts and Accommodations

Assessing the impact of exploration activities could be required as part of a claim application and would need to be done in consultation with the relevant First Nation(s) as per the Supreme Court’s decision. For example, the emerging consultation framework could establish areas where claim registration could be restricted or prohibited based on First Nations identification of culturally, economically or environmentally important places.

The Ministry is seeking the best approach to making both the identification of potential impacts and mitigation of those impacts accessible and practical for claims registrants.

4.     Implementation of Accommodations

Accommodation speaks to the changes in the way that the claim is worked to respect Indigenous right and interests. One position held by the industry is that consultation may be proportionate to the potential impacts, so it could be triggered differentially on a claim-by-claim basis.

The Gitxaała decision clarified that negative impact has to be seen from the perspective of First Nations, so the MCCF will need to include a process and mechanism for identifying potential impacts, mitigating or accommodation and verification of the mitigation or accommodation, in consultation with First Nations.

Questions that are raised include:

• Who would carry out mitigation or accommodation – the registrant or the province?

• How would changes be validated and what would an enforcement regime look like?

Finally, the Ministry has identified that these four areas of inquiry are not necessarily going to be the only ones considered, as the actual MCCF may include components beyond these. The Ministry, First Nations and other industry partners will continue to engage to develop this consultation framework by March 2025, and to modernize the MTA over the next two years.

Additional Insight from our Inspirers

In November 2023, following the Gitxaała decision and before the Ministry’s process was underway, Inspire Resources held a dialogue event with a group of exploration geologists, association members and miners to discuss the possible implications of the decision.

We looked at the decision from the perspective of an industry ripe for (and already experiencing the impacts of) transformation. In particular, our focus was on resolving a key tension in mining: how do we get critical minerals into the supply chain in an era of free, prior and informed consent?

Many of us saw Mineral Tenure Act reform as necessary. Inspire intentionally brought together a group who held a vision of mining as an activity that would be carried out with free, prior and informed consent, and would be a source of support for holistic growth and development of Indigenous communities and people.

Our group had several observations or suggestions related to the mechanics of a claims consultation framework, including:

1.     Culturally Significant Sites: First Nations will need to identify culturally significant areas including those for harvesting traditional medicines. An alternative approach will be that First Nations will take specific parcels of land out of consideration, possibly based on a comprehensive land use plan.

2.     Capacity of claimants: Many exploration companies are small operations with minimal staff and without training or competency to do engagement work. Many prospectors in the field will need help sorting out who to talk to, what to say, and how to do that work on a limited budget. Prospectors may not know if the community has the capacity to have those conversations, and the problem will worsen if companies send unprepared team members to meet with First Nations.

3.     Capacity of First Nations: As every nation is different, there will not be a “one size fits all” solution for First Nations.  If comprehensive Land Plans are the basis for restricting or prohibiting claims, there will need to be support for completing these.

One idea that grew from our discussion was the creation of an entity or coalition of representatives to provide neutral mediation for claimants and First Nations. The group would not act on behalf of the industry, government or for the First Nation, but rather on behalf of everybody – as an amalgamator of information and convenor. The Province or an agreed-upon organization would act as secretariat.

Our group of Inspirers also identified implications for the sector that could arise as a result of a new mineral claims consultation process, including:

1.     Earlier Investment: Incorporating consultation into the claims process will shift the costs and time of initial consultation to an earlier point in the phases of mineral production. It will be better (for mining companies, investors and the Critical Mineral Strategy) to learn this before going through expensive permitting processes and this will have the effect of reducing risks for any claim that is staked;

2.     Rationalization of claims: Benefits arising from the decision include earlier-term identification of issues that could make it difficult to get a permit at a later stage in development. This could have the effect of reducing the amount of investment put into claims that cannot be converted into productive resources;

3.     Education on Indigenous Rights: There is a need for education, both for Indigenous and non-Indigenous public. There are two areas of messaging that are important:

a.     The importance of mining to a sustainable global economy and to the development of rural and remote communities;

b.     The historical context and implications of the Gitxaala decision and UNDRIP. Without context, the decision can be seen as a burden or imposition on mining companies and economic activity. With context it is more easily seen as part of a continuing process of Truth and Reconciliation, and one that clarifies Indigenous rights in a modern context. 

4.     Training of Geologists

Companies are not going to be ready for this change and it is more economical to provide consistent training than to let companies develop solutions by themselves. We should be aiming to train our colleagues and this might be through the bodies like AME BC. Professional governance bodies are offering similar training and can provide input on how to get through this.

Training should be embedded into geoscience education to include reconciliation and First Nations relationships. This training goes beyond mineral exploration as the implications of the Gitxaala decision will reach oil and gas and forestry sectors as well. 

5.     Raised Expectations in other jurisdictions: Other First Nations outside of BC will see the increase in attention to FPIC and will be empowered to expect more of consultation processes with industry. Companies operating in jurisdictions outside of BC will have examples of better practices that they can adopt to their own claims and operations. We are currently seeing challenges in Ontario similar to the case made in BC’s Supreme Court;

6.     Economic Impacts on mineral exploration: The current investment environment will make it difficult for exploration companies to shift their community engagement resource to an earlier phase of the value chain. There may need to be investment from government to support the ongoing health of the exploration sector, or impact investors may be willing to provide resources earlier.

Conclusion: Advancing critical minerals and reconciliation in a transitional environment

The BC Supreme Court’s decision is typical of the way that many changes have been made in Canada, and the adoption of UNDRIP should move us to a less litigious approach to change in the relationship between First Nations, Indigenous peoples, government and industry. Billions of dollars’ worth of energy projects have been cancelled due to opposition from First Nations in the past decade alone, as the courts have clarified Aboriginal rights and title. I

That said the process of developing a new claims consultation framework and MTA comes at a difficult moment for several reasons:

• The exploration industry is experiencing significant challenges in getting investment for projects and for the work of assessing claims;

• Companies are experiencing delays in processing environmental and other permits when they shift into core sampling, trenching or bulk sampling. Both government and First Nations have limited capacity, and this has delayed projects;

• A provincial election will be held in October of 2024. The two parties that are neck-and-neck in polling have opposite views with regards to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The New Democratic Party, which is currently in power, passed the Declaration Ace and created a plan to align legislation with, including the Mineral Tenure Act which is the second of two tracks discussed here. The Conservative Party’s platform includes repealing UNDRIP.  

Many feel that the requirement to consult earlier, along with the eventual introduction of free, prior and informed consent will slow the process of getting the Critical Minerals we need for a zero-carbon future. We feel the changes could accelerate this process, if we get it right.

Regardless of the upcoming BC election’s outcome, the claims consultation framework issue needs to be resolved because it is now a judicial issue rather than a political one. And therein lies the promise for mining and for Indigenous communities.

One potential game-changer would involve a reconfiguration of the mine approvals process to seek social license at an earlier stage and set the foundation for the development and stewardship of deeper relationships at all points in the mine development process.

Inspire Resources is working with partners to identify how a consultation process at the claims registration stage could lead to better outcomes including:

• Engagement of First Nations knowledge holders in the identification of culturally, environmentally and economically important areas;

• Stronger understanding of the specific Indigenous cultures with whom registrants are working, enabling the development of shared approaches to including each other in decision-making;

• A process of Co-Design for the mine that includes First Nations, so that all stakeholders and rights-holders participate in a vision for mineral development, securing investment and for leveraging profits to support long-term community sustainability, well-being and prosperity.

Despite the challenges ahead in the next few months and years, the Gitxaala decision will accelerate the process of getting critical materials into the supply chain.

Inspire sees the opportunity for a new era of co-design, where mining is an integral part of community development and wellbeing, wherever it happens.

[1] Gitxaała decision [396]

[2] Gitxaała decision [326]