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

VANCOUVER — 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.

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