Author: Julia Brown

A recent decision from the Supreme Court of British Columbia on mineral exploration may be useful to Indigenous peoples in Ontario arguing that they are entitled to deeper consultation and accommodation in the context of early mineral exploration activities.

In Gitxaala v British Columbia (Chief Gold Commissioner) (“Gitxaala”), the Court was asked to determine when the duty to consult and accommodate is triggered in the mineral exploration process – is it when the Crown contemplates issuing mineral claims, or “stakes” (which entitle claim holders in B.C. to explore and dig in the claim area), as the First Nation claimants argued, or when the Crown contemplates issuing permits for more intrusive mineral exploration activities, as the Province argued?

The Court agreed with the First Nation claimants and held that the duty was triggered when the Crown contemplates issuing mineral claims (or, “staking a claim”).  The Court based this decision on the Haida test, which requires that the Crown consult and accommodate Indigenous peoples when it intends to act in a manner that may adversely affect potential or established Aboriginal or Treaty rights, including Aboriginal title.

The court reached its conclusion based on the following adverse impacts to Aboriginal or Treaty rights:

• Physical impacts:
  • “…the potential physical disturbance caused by the activities authorized under a mineral claim constitutes an adverse impact. I note, by way of example, that the holder of a mineral claim has the right to engage in pitting, trenching, and drilling, and to conduct geological sampling using tools such as hand-held drills, and set up temporary residence on the claim area with tents, trailers, or campers. Further, numbers of adjacent cells are often obtained by individual recorded holders, leading to a cumulative effect on the First Nation asserting rights.”
• Impacts to Aboriginal Title:
  • “…a loss of minerals (that is, the permanent removal of minerals from asserted territories) constitutes an adverse impact for the purpose of the Haida The holder of a mineral claim, under the MTA [the B.C. legislation on mineral exploration], is authorized to collect and extract a prescribed amount of minerals from the claim area. To permanently remove minerals from land is to permanently reduce that land’s value. An irreversible reduction in the value of asserted territory is, in my view, exactly the type of adverse impact the Haida Test envisioned.”
  • Granting a mineral claim “transfers some element of ownership of minerals to the recorded holder” and “confers the exclusive right to explore for minerals with the area. That right provides a financial benefit, the right to raise capital through investment.”
• Impacts to Cultural and Spiritual Areas:
  • The First Nation claimants in this case adduced evidence on potential impacts mineral exploration could have on areas that are culturally or spiritually important to them. In considering the evidence on spiritual and cultural harm, the Court held “the concept of ‘adverse impacts’ must be viewed through the lens of the First Nation.”
    • Note that this trigger for the DTCA was “based upon the evidence adduced by the petitioners regarding their experiences in their own territories,” and might not be present in other Indigenous peoples’ circumstances.

The ways in which these conclusions might be helpful in Ontario are outlined below.

Ontario vs. B.C. Mineral Exploration Regimes

Ontario’s mineral exploration regime is similar to B.C.’s, but there are differences.

B.C., like Ontario, has what is called a “free entry” mining system.  In this system, would-be miners can lay claim to mineral rights using an electronic online system.  All that is needed for aspiring miners to “stake claims” on the online system is to register as a prospector with the province.  Requirements for registration are minimal.  In Ontario, you must be at least 18 years old and you need to complete the Mining Act Awareness Program.  In B.C., you must be at least 18 years old and you need to pay a $25 fee.

In terms of the differences between B.C. and Ontario’s free entry mining regimes, the most significant difference for the purposes of this post is that in Ontario, exploration activities such as drilling, cutting down trees for surveying, and stripping, may only be started once an “exploration plan” has been approved.  That is to say, simply staking a claim does not entitle a proponent to start digging on the claim area, like they have been able to do in B.C. – they need to have an exploration plan approved before beginning exploration work. In theory, the Crown (or sometimes the proponent) conducts consultation with potentially impacted Indigenous peoples before issuing exploration plans.

However, despite this difference in the legislation, the B.C. decision still has relevant findings for Ontario, since:

• As in B.C., consultation in Ontario does not happen until after a claim is already staked, or claimed. This is a problem because, as the Court in Gitxaala noted, staking a claim “transfers some element of ownership of minerals to the recorded holder” and “confers the exclusive right to explore for minerals with the area. That right provides a financial benefit, the right to raise capital through investment.”  These impacts are triggers for the duty to consult and accommodate, and they are as alive in Ontario as they are in B.C. The B.C. decision therefore supports the argument that claims should not be able to be staked without advance consultation and accommodation;
  • Note, however, that the Court associates these impacts with Aboriginal title and the rights of Aboriginal title holders to the economic benefits of the land and to use and manage the land. How and whether these arguments might come into play with respect to Treaty rights would depend on the Treaty; and
• As outlined below, the level of consultation that Ontario currently undertakes before approving exploration plans is very, very low. The Court’s reasoning in Gitxaala supports a deeper level of consultation and accommodation.

Ontario’s current consultation practice for exploration plans

As anyone who has ever dealt with mineral exploration plans will know, the level of consultation the Crown undertakes in Ontario before approving an exploration plan is negligible.  In general, the Crown’s practice is to send a pro forma letter to First Nations containing:

• a statement that the proponent’s application or plan has been received by the Crown;
• a copy of the plan or permit application;
• a statement that the activities proposed “typically have limited potential for impacts on the ground;” and
• a request that the First Nation review the application or plan, and a statement that if the First Nation has comments or concerns about potential adverse effects to its Aboriginal or Treaty rights, the Nation can contact the Crown by a date at most one month away.

What these pro forma letters do not contain is any detail about the Crown’s understanding of the proposed work and what potential impacts on the Nation’s rights the Crown anticipates.  The Crown offers no analysis in these letters, and simply assumes that because the work proposed is “early exploration,” impacts will be minimal.  Both the engagement process and the funding offered to enable participation in it are inadequate to First Nations seeking to identify and understand what potential impacts projects will have.  Further, in some places, like the Ring of Fire area in the far north of the province, the high pace of staking means that so many letters are coming into First Nations that it simply overwhelms their capacity to respond in a meaningful way.

In Gitxaala, the Court held that the physical impacts of early exploration under B.C.’s Act were not “nil or negligible”, even though the activities the Court was contemplating in that case were less disruptive than those permitted in Ontario under an exploration plan. Importantly, the Court also stated that it was from the Indigenous perspective that the disturbances were not “nil or negligible” – this should be a helpful statement with which to push back against unilateral Crown characterizations of impacts with which Indigenous peoples do not agree.

While the Court did not comment on the level of consultation that is required prior to issuing a mineral claim, the potential adverse impacts it recognized in its decision are serious ones that would support a deeper level of consultation and accommodation than the mere notice that Ontario currently provides to First Nations.

That said, it is noted that on October 19, 2023 – after the release of the Gitxaala decision – Ontario posted a proposal on the Environmental Registry of Ontario that is aimed at “considering opportunities to remove unnecessary barriers to identifying and developing mineral supply for manufacturing in Ontario” given Ontario’s view that “early exploration activities typically have a focused geographic scope, short duration, and limited impacts to the environment.”  In light of this, it seems that Ontario does not intend to be guided by the B.C. court’s reasoning at this point in time.

Take Aways

While in the opening and close of the decision the Court framed its conclusions on as being based on (a) Aboriginal title claims and (b) cultural and spiritual claims specific to the claimants, the reasoning on physical impacts outlined above should be applicable to the exercise of all Aboriginal and Treaty rights.

The Court’s reasoning on adverse impacts should be useful to First Nations in arguing that:

• Claims should not be able to be staked without advance consultation and accommodation; and
• Ontario’s current level of consultation and accommodation prior to approval of exploration plans is insufficient.