[1]         These reasons address the claims made by the petitioners in two separate petitions. The two petitioners are First Nations within British Columbia (“BC”). The petitioners argue that the current mineral tenure system in the province operates in contravention of the Crown’s duty to consult with First Nations. The petitioners seek several forms of relief which I outline below.

[2]         Mineral exploration in BC is regulated under the Mineral Tenure Act, R.S.B.C. 1996, c. 292 [MTA]. Under the MTA, “free miners” are entitled to register a “mineral claim” over unclaimed Crown land. The holder of a mineral claim (the “recorded holder”) is granted various rights, including the right to explore and dig up the claim area to search for minerals. If minerals are found, and the miner wishes to extract them on a commercial level, they must apply for further approvals under the Mines Act, R.S.B.C. 1996, c. 293.

[3]         There is no consultation with affected First Nations at the time a mineral claim is granted. Consultation only occurs at the later permitting stages.

[4]         Both petitioners assert rights to certain territories in BC. These petitions relate to the petitioners’ asserted rights, and not to established or treaty rights. Both petitioners argue that the granting of mineral claims under the MTA adversely affects their asserted rights. The petitioners’ claims arise from two different legal bases.

[5]         First, the petitioners claim that the mineral tenure system breaches their rights under s. 35 of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Constitution]. They allege that mineral claims adversely impact their Aboriginal claims or rights and, as a result, the test set out by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (the “Haida Test”). The Haida Test dictates that the province has a duty to consult before granting those mineral claims. The petitioners submit that the breach is occasioned either by the improper implementation of the MTA, or alternatively, by the constitutional invalidity of the MTA.

[6]         Second, the petitioners rely on the Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44 [DRIPA], and the United Nations Declaration on the Rights of Indigenous Peoples, UNGA, 61^st Sess, UN Doc A/RES/61/295 (2007) G.A. Res 61/295 [UNDRIP]. They submit that the MTA is inconsistent with the rights recognized in both DRIPA and UNDRIP.

[7]         The petitioners seek either a declaration or injunctive relief. They also seek to quash several recently granted mineral claims.

[8]         In response, the province acknowledges that the MTA and the broader schemes of mineral exploration and mining, like most natural resource legislation, raise the issue of “reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions”: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 at para. 1. The province submits that reconciliation of the Aboriginal rights of Gitxaala and Ehattesaht with the competing claims, interests, and ambitions of others, can best be achieved through ongoing dialogue.

[9]         The province does not deny that it owes any obligation to First Nations with respect to mineral prospecting. As discussed below, the origins of the MTA date back to 1859. Our society has evolved. The province says that it is working in consultation with First Nations to reform the mineral tenure system. The province submits that the process of legislative reform and reconciliation should be allowed to continue.

[10]      With that said, the province acknowledges that a court ruling will assist in facilitating the dialogue by answering the legal issue of whether s. 35 imposes, through the honour of the Crown, a constitutional obligation on the province to consult with Indigenous groups prior to the registration of mineral claims in their territories.

[11]      In response to the petitioners’ arguments, the province submits that the current mineral tenure system, and the granting of mineral claims, do not create adverse impacts that are sufficient to trigger a duty to consult.

[12]      The province further submits that DRIPA does not create any justiciable rights, nor does it implement UNDRIP into domestic law. The province submits that DRIPA sets out a commitment to reconciliation and not the establishment of rights that can be enforced by the courts.

[13]      Finally, the province submits that if I find in favour of the petitioners, then the proper remedy would be a declaration of that right. The province also requests that the declaration be suspended for a period of 18 months in order to allow the parties to work toward reconciliation of these issues.

[14]      As discussed below, the parties proceeded through their submissions over a period of 14 days. Due to the volume and variety of issues presented, each party took many legal positions and many positions in the alternative. I find it efficient at this early stage to set out the positive findings that I make in these reasons. By doing so, I eliminate the need to address many of the alternative positions taken by the parties. By definition, these findings fall into the “big picture” category. I deal with the granular analysis below.

[15]      I pause here to note that this is, to my knowledge, the first judicial consideration of the legal effect of DRIPA. As noted above, I find that the petitioners are not entitled to any relief under DRIPA or UNDRIP. As I discuss in that section of these reasons, I anticipate that this will be the first of many opportunities for the courts to consider DRIPA and UNDRIP. I expect that both the legislation and the jurisprudence will develop over time. However, these reasons address the legal effect of the current legislation.

[16]      My reasons below proceed upon a foundation of legal principles that are not in dispute. These principles provide the context for my reasons:

[17]      The province acknowledges that elements i. and ii. are established in these cases. Hence, these reasons focus primarily on the third element of the Haida Test. The petitioners allege that they suffer adverse impacts from the granting of mineral claims. The province says that they do not.

[18]      I also want to address the use of language and alphabet in my reasons. In submissions, counsel referred to many persons, places, and terms in the language and alphabet of either the Ehattesaht (Nuu-chah-nulth) or the Gitxaala. In these reasons I have attempted to explain the English translation of those terms. I have primarily used English terms in the process of my writing. I proceeded in this fashion because I am writing for a larger audience and in the English language. I mean no disrespect by replacing the Nuu-chah-nulth and Gitxaala terms with my understanding of the closest English translation.

[19]      In addition to the main substantive issue (the Haida Test), I address the following issues below:

[20]      I note that these issues lead to numerous sub-issues which I outline and discuss below.

[21]      To be clear, the only substantive issue before me is whether the duty to consult is triggered at the mineral claim stage. The parties agree that the appropriate “measures” (meaning the level, type, or depth of any consultation) are not a proper consideration for the court in these proceedings.

[22]      Further, I am not deciding any issues relating to placer mines. (Placer mining involves separating heavily eroded minerals, like gold, from sand or gravel, usually on the run of a river.)

[23]      Finally, apart from the specific mineral claims noted in the two petitions (and discussed below), I am not deciding the validity of any previously registered mineral claims, mineral leases, or mines. Hence, to be clear, this decision does not affect the rights of the recorded holder of any existing mineral claim in BC except insofar as that recorded holder of that claim is named as a respondent in one of the two petitions.

[24]      I now turn to a description of the parties and the territories in issue.

[25]      In the first petition, the petitioner is Sm’ooygit Nees Hiwaas (“Nees Hiwaas”), also known as Matthew Hill, a hereditary chief of a clan of the Gitxaala Nation. The governing body of the Gitxaala Nation, the Smgyigyetm, or hereditary table, appointed him to bring this petition. Given his representative capacity, I refer to this petitioner throughout these reasons as “Gitxaala” and people who comprise the nation as “the Gitxaala”.

[26]      Nees Hiwaas describes the Gitxaala traditional territories as a portion of BC in the area of Banks Island. Banks Island is located between Haida Gwaii and the mainland, approximately 100 kilometers south of the City of Prince Rupert. Gitxaala asserts rights and title to this area, including the air, lands, waters, and water-covered lands. Gitxaala has not signed any treaty or completed any negotiation with BC or Canada regarding its traditional territory. As a result, this petition proceeds on the basis of Gitxaala’s asserted claims. For efficiency in these reasons, I refer to these areas as the “Gitxaala Territory”. To be clear, however, that term is used for convenience. It neither connotes nor confers any rights to Gitxaala. I describe the evidence adduced by Gitxaala below under the heading “What is the Record?”

[27]      The second petition is brought by Chief Simon John (“Chief John”) in his capacity as the Chief of the Ehattesaht First Nation on behalf of all members of that nation. Given his representative capacity, I refer to this petitioner throughout these reasons as “Ehattesaht.”

[28]      Chief John describes the Ehattesaht First Nation as a group of approximately 542 members. The Ehattesaht are within the Nuu-chah-nulth cultural and linguistic group and reside on the West Coast of Vancouver Island. He describes the traditional territory of the Ehattesaht between Kyuguot Channel and Moxino Point, including the north half of Esperanza Inlet and Hecate Channel, Zeballos Inlet, Espinosa Inlet, Espinosa Arm, Port Eliza, Queen’s Cove, Rugged Point and the surrounding lands. For the assistance of non-residents of the area, this territory is approximately 100 kilometers northwest of the Town of Tofino. Although I used the term “traditional territory” above, Chief John describes the close connection that the Ehattesaht have to the lands and waters upon which they have lived for thousands of years. Ehattesaht has not signed any treaty or completed any negotiation with BC regarding its traditional territory. As a result, this petition proceeds on the basis of Ehattesaht’s asserted claims. For convenience in these reasons, I sometimes refer to these areas as the “Ehattesaht Territory”. As noted above, my use of that term is for convenience and neither connotes nor confers any rights to Ehattesaht. I further describe the evidence adduced by Ehattesaht below under the heading “What is the Record?”

[29]      Gitxaala and Ehattesaht are:

[30]      In the further amended petition of Gitxaala, the named respondents are:

[31]      The CGC and the LGIC are represented by the Ministry of the Attorney General of the province. When a position is taken by counsel for the Attorney General, I refer to those parties in these reasons as “the province”. However, when I address the functions of each provincial actor, I discern between them.

[32]      Mr. Paul and Mr. Friesen are the holders of five mineral claims registered in 2018 comprising approximately 1,200 hectares located on Gitxaala Territory. Gitxaala seeks to quash these mineral claims. Mr. Paul and Mr. Friesen filed a response to the petition but did not make submissions at the hearing.

[33]      Mr. Shearer is the holder of a mineral claim registered in 2020 comprising 172.78 hectares located on Gitxaala Territory. Gitxaala seeks to quash that mineral claim. Mr. Shearer did not respond to the petition.

[34]      GMR was the holder of a mineral claim registered in 2018 comprising 58.78 hectares located on Gitxaala Territory. Gitxaala seeks to quash that mineral claim. GMR did not respond to the petition and evidence adduced at the hearing indicated that GMR’s mineral claims lapsed by the final date of the hearing.

[35]      In the further amended petition of Ehattesaht, the named respondents are:

[36]      Again, the CGC and the LGIC are represented by the Ministry of the Attorney General of the province.

[37]      Privateer Gold Ltd. (“Privateer”) is the holder of 16 mineral claims in Ehattesaht Territory, six of which were registered in 2022. It responded to the petition and made submissions at the hearing. Ehattesaht seeks to quash certain of Privateer’s mineral claims.

[38]      Almehri Mining Inc. was the holder of 11 mining and mineral claims in Ehattesaht Territory, all of which were registered in or after 2020. Ehattesaht seeks to quash those mineral claims. However, evidence tendered at the hearing indicated that all 11 of Almehri’s mineral claims had lapsed.

[39]      GMR was the holder of five mineral claims in Ehattesaht Territory, registered in 2022. GMR did not respond to the petition. The Ehattesaht petition seeks to quash GMR’s mineral claims. However, evidence tendered at the hearing indicated that all five of the mineral claims had lapsed.

[40]      Mr. Lyons and Mr. Manahan are directors of Forest Crystals Ltd. (“Forest Crystals”). Mr. Lyons and Mr. Manahan each hold a mineral claim in Ehattesaht Territory. Ehattesaht seeks to quash these mineral claims. Evidence tendered at the hearing indicated that some of these mineral claims had lapsed. Ehattesaht also relies on the actions of Forest Crystals to illustrate adverse impacts on its rights. I discuss that evidence below.

[41]      Pursuant to my earlier ruling (2023 BCSC 29), there are eight intervenors (the “Intervenors”) on the two petitions:

[42]      In general terms, the Mining Industry Coalition supported the position of the province, while the other Intervenors supported the petitioners. The Mining Industry Coalition’s submissions focussed primarily on “Remedies” and supported the province’s position that any relief that is granted should be suspended to allow for a transition period. To avoid duplication, the other Intervenors (in support of the petitioners) cooperated and divided the legal issues between themselves. Where those arguments divert from the petitioners’ submissions, I have noted it below. I highlight, at this point, that the position taken by the BCHRC on the legal impact of DRIPA diverts from the positions of the petitioners and the province.

[43]      According to my prior ruling, the affidavits of the Intervenors are not admissible as evidence in these petitions.

[44]      For ease of understanding, I set out here a broad description of the relief sought and the respondents’ position. I then set out the petitioners’ claims for relief in detail.

[45]      The relief sought by the petitioners is premised on their assertion that registration of mineral claims on their territories generally, and of the named claims specifically, adversely affect their asserted Aboriginal rights and title. Hence, consultation must occur before minerals claims are granted.

[46]      As discussed in detail below, the petitioners chose to proceed by way of judicial review. Relief in judicial reviews is always discretionary.

[47]      The two petitioners seek similar types of relief. The primary focus of their submissions was the implementation of the statutory scheme as opposed to the validity of the statutory scheme itself. Both petitioners seek declarations that the CGC’s conduct in establishing an online system that allows automatic registration of mineral claims in their territories, without creating a system for consultation, breaches the obligations of the Crown.

[48]      In the alternative, the petitioners argue that, if I find that the CGC has been acting within their proper authority under the MTA, then I should grant a declaration pursuant to s. 52 of the Constitution that certain sections of the MTA are inapplicable to their territories or constitutionally invalid.

[49]      The petitioners also seek to quash or set aside specific mineral claims in each of their territories.

[50]      Finally, the petitioners seek injunctive relief (both interim and final) to prevent further mineral claims from being registered in their territories until appropriate consultation can occur.

[51]      I set out below a more detailed description of the relief sought by the petitioners.

[52]      Gitxaala seeks declarations that the Crown owes a duty to consult, and where appropriate, accommodate Gitxaala prior to allowing further acquisition of mineral claims in the lands over which it asserts title. It specifically frames these as:

[53]      Gitxaala also seeks:

[54]      Gitxaala seeks to set aside, or quash, specific claims that were acquired without consultation on lands over which it asserts Aboriginal title. All of the claims are on Banks Island. The seven claims are:

[55]      Gitxaala also seeks a permanent injunction prohibiting the automatic granting of mineral claims without consultation on the lands over which they assert Aboriginal title.

[56]      Since the filing of this petition, the Centre Claim and the 2020 Claim have both forfeited. The respondents Mr. Paul and Mr. Friesen are the registered holders of Claims #1–#5.

[57]      There are a number of other historic mineral claims on Banks Island that Gitxaala has not challenged.

[58]      The remedies sought by Ehattesaht are similar to those sought by Gitxaala.

[59]      Specifically, Ehattesaht seeks declaratory relief as follows:

[60]      Ehattesaht seeks an order quashing or setting aside the following mineral claims. Ehattesaht identified these particular claims because they are in the “the Nomash”, an area within the Nomash and Zeballos River watersheds with deep historical and cultural significance for the Ehattesaht people. Ehatis, the main Ehattesaht community, is situated in the Nomash, and the nation has used and occupied the Nomash since before contact with Europeans and the Crown’s assertion of sovereignty. The claims Ehattesaht seeks to quash or set aside are:

[61]      Of the 36 claims Ehattesaht seeks to quash, 16 had been forfeited by the time of the hearing including all impugned mineral claims held by Almehri and GMR. GMR holds other claims in Ehattesaht territory that Ehattesaht has not sought to quash. There is also evidence that seven of the 36 claims had been amalgamated into a single claim. Hence, the amalgamation results in a status quo appearing to be a decrease in the number of claims held. However, the total area affected by those claims remains the same. Among the 20 claims in good standing is at least one claim held by Forest Crystals or Andre Lyons on behalf of Forest Crystals.

[62]      Ehattesaht also seeks the following injunctive relief:

[63]      For ease of reference and understanding, I set out here a number of terms that are used in the mineral exploration vernacular. The definitions provided below are based on the statutory definitions in the MTA and the Mines Act. I have edited those definitions down and only include the portions of which are relevant to the current proceeding:

[64]      As discussed in detail below, the mineral titles registration system  progresses as exploration develops into production. The first step is for a free miner to register a mineral claim over an area and become the recorded holder. If the exploration of that area suggests the existence of profitable mineral deposits, then the recorded holder can apply for a mineral lease, which provides greater exploration rights and greater rights to the minerals. To proceed further, the recorded holder is required to apply for a permit under the Mines Act.

[65]      The two petitioners bring these claims by way of judicial review. Several preliminary questions arise from this procedural choice:

[66]      I deal with each issue in order. I note that the issues overlap and are intertwined.

[67]      First, I deal with the propriety of bringing the claims as petitions for judicial review.

[68]      The two petitions are brought under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 [JRPA], and in particular, s. 2:

[69]      The petitioners seek a number of forms of relief including declarations, injunctions, and the quashing of existing mineral claims.

[70]      In its response, the province took issue with proceeding by way of petition. That position led to considerable submissions relating to whether a petition is the correct form of proceeding. However, the province ultimately conceded that:

[71]      In other words, the province agrees that, with adaptations, I can decide the issues in these petitions without converting them to actions. Nevertheless, I will now summarize the parties’ submissions on the proprietary of bringing the present claims as petitions for judicial review. These submissions provide important context for my subsequent discussion on the appropriate adaptations required in these cases that are not standard judicial review procedure.

[72]      The underpinning of the province’s submission is that the petitions constitute standalone challenges to the validity of the MTA and, therefore, are more appropriately categorized as actions for declaratory relief. Further, the province argue that the petitioners have failed to identify specific instances of statutory decision-making to be reviewed. In this regard, the province submits that this judicial review is an “awkward fit” in these circumstances.

[73]      In response, the petitioners submit that they do not (primarily) challenge the constitutionality of the MTA itself; they impugn the manner in which the CGC exercised its powers under the MTA.

[74]      I agree with the petitioners that their claim predominantly is about decisions made by statutory actors under the MTA. While both petitioners did advance arguments in the alternative challenging the constitutionality of the MTA, those arguments do not transform their claims into something other than petitions.

[75]      Furthermore, the petitioners have correctly identified a statutory decision maker, the CGC, whose decisions can properly be subject to judicial review. With that said, I agree with the province’s contention that the particular decision challenged by the petitioners is not readily identifiable. To illustrate that point, I note that, at some point, the CGC decided that there would be consultation at the “mineral lease” stage but not the “mineral claim” stage (i.e., consultation with First Nations occurs at the time a mineral claim is converted to a lease but not at the time a mineral claim is first registered). Thus, the CGC decided to “draw the line” at a point after a mineral claim has been issued. However, it is unclear where or when that decision was made, or by whom. There is no record of that decision.

[76]      As I discuss below, it is not the issuance of individual mineral claims that constitutes the reviewable decision. The decision at issue relates to the decision-making of the CGC in establishing and overseeing the operation of that online registration system. The individual mineral claim registrations are consequences of these originating high-level decisions.

[77]      Accordingly, I find that what at issue is the CGC’s ongoing decision not to implement a system that provides for consultation prior to the issuance of mineral claims. For this reason, the impugned decision-making in this case can be categorized as a series of “non-decisions.”

[78]      It follows that the petitioners seek judicial review of a series of non-decisions for which there is no written record. I accept the province’s submission that this scenario presents an “awkward fit” for a judicial review.

[79]      Despite that “awkward fit”, as noted, the province’s stated position is that any procedural difficulty created by the bringing of this claim as a judicial review is only an “irregularity”. To be clear, the province’s position is that the petitioners’ claims should be adjudicated, in full, on the basis of these petitions. However, proceeding in this manner requires adaptations.

[80]      The next issue that derives from the discussion above relates to the nature of the relief sought. Although the petitioners seek specific relief in relation to each of their asserted territories, the nature of the judicial review relates to the larger issue of the province’s decision on “where to draw the line” based on the correct interpretation of the MTA. That issue is, in my opinion, systemic.

[81]      The province characterizes the petitioners’ arguments as an attack on the whole system of mineral claims acquisition. The province argues that granting the petitioners’ requested remedies would amount to dismantling the provincial free entry system and would throw the mining regulation regime into disarray. I discuss below the province’s evidence regarding statistical and financial impact. Essentially, the province says that if I grant a declaration that the province was required to consult with the petitioners about mineral claims within their territories, then the practical result would be an obligation to consult with all First Nations in BC. The province says that is an obligation that it (currently) lacks the capacity to fulfill.

[82]      In response, the petitioners submit that the remedies they seek would only affect their asserted territories and specific mineral claims thereon. They say that the decision would have precedential effect, meaning that other First Nations could commence their own proceedings for similar relief.

[83]      The upshot of the province’s submission is that, while the petitioners submit that they only seek relief in respect of their own territories, the practical impact will apply across the province.

[84]      So, the question arises: Is the relief sought systemic, or particular, to the individual petitioners?

[85]      In my opinion, the short answer to this question is: Both.

[86]      First, both petitioners seek systemic declarations that:

[87]      The petitioners also seek particularized relief: the quashing of specific mineral claims in their asserted territories. They argue, in part, that the duty to consult varies with the relationship of a particular First Nation to the affected land. They submit that the depth of the consultation must be assessed on that basis. For example, there would be a difference between:

[88]      The petitioners assert that the former would require deeper consultation.

[89]      However, as noted above, the scope of my decision only addresses the existence of a duty to consult. It does not address “measures”. It follows that I am not considering the strength of the petitioners’ asserted claims, nor the depth of the consultation requested. I am only considering the existence (the triggering) of the right.

[90]      As discussed below, the evidence establishes that the CGC acted at a higher decision-making level in the process of establishing and administering the mineral tenure system. Put another way, the decision in question was not the CGC’s exercise of their statutory authority in respect of the issuance of individual mineral claims. The decision (or non-decisions) in issue occurred at a higher level when the system was designed. Hence, the issue I am addressing is systemic. In my opinion, the appropriate remedy is a general declaration; therefore, it is my intention that the remedy that I grant at the end of these reasons applies more broadly than the territories of the two petitioners.

[91]      That is not to say, however, that I cannot address individual claims. A general declaration does not preclude other specific declarations or relief pertaining to the petitioners and their individual claims. The province concedes that it is aware of the petitioners’ rights and title claims. In my opinion, it is also appropriate for me to consider whether a declaration, or other relief, is available in respect of the asserted territories of the two petitioners.

[92]      All of this is to say that:

[93]      With those positions in mind, I accept the province’s further submission that the following principles govern the judicial review process:

[94]      I now proceed to discuss the remaining issues under this heading:

[95]      As noted above, the Ehattesaht and the Gitxaala frame their claims in relation to the operation of the mineral tenure system as a whole. Intrinsic in those claims are questions about the decision-making of both the CGC and the LGIC. The petitioners question the series of decisions that have the effect of allowing the registration of mineral claims without consultation. In the alternative, the petitioners say that, if the court finds that the provincial actors are acting within the proper exercise of their authority, then the MTA itself is invalid legislation.

[96]      The province accepts that characterization of the questions.

[97]      Hence, I am proceeding on the basis that the petitioners question the series of higher-level decisions (or non-decisions) that have the effect of allowing the registration of mineral claims without consultation.

[98]      The parties agree that the question of whether a duty to consult arises is a question of law. Hence, the proper standard of review is “correctness”.

[99]      However, on questions of fact, or mixed fact and law, a reviewing body may owe a degree of deference to the decision maker.

[100]   The Crown submits that, on evidentiary issues, I should grant deference to the provincial actors in respect of the information they relied upon to arrive at the decision not to consult at the mineral claim stage.

[101]   I address those concerns when dealing with the specific evidentiary issues.

[102]   In general, the evidence admissible on judicial review is the record that was before the decision maker at the time the impugned decision was made: JRPA, s. 17; Albu v. University of British Columbia, 2015 BCCA 41 at paras. 35–36. This general rule, however, is “clearly geared to tribunals that make adjudicative decisions at hearings”: Sobeys West Inc. v. College of Pharmacists of British Columbia, 2016 BCCA 41 at para. 41. For non-adjudicative decisions, like the ones at issue in the present case, there may not be a record of what information was before the decision maker. Thus, the general limiting rule should be adapted in the case of non-adjudicative decisions to allow for greater flexibility in defining the scope of the “record”: see, e.g., Chartrand v. The District Manager), 2013 BCSC 1068 at para. 117, varied on other grounds, Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345; Gamlaxyeltxw v. British Columbia (Ministry of Forests, Lands and Natural Resource Operations), 2018 BCSC 440 at paras. 13, 15.

[103]   In this case, there is no formal record; there is no record of what the CGC considered when “drawing the line”. Nor is there, for example, a collection of memorandums indicating the reasons behind the CGC’s decision. For this reason, I conclude that a flexible, purposive approach to defining the record is appropriate. Specifically, evidence should be admitted if relevant to the issues I am to decide on this petition.

[104]   As noted, the overarching question in this case relates to the duty to consult under the Haida Test. As summarized by the Supreme Court in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 [Rio Tinto], the elements of the Haida Test are as follows:

[105]   On the first two parts of the test, the province concedes that it has actual knowledge of the claims asserted by the two First Nations to the territories described above. Hence, evidence of the nature of the asserted claims is relevant, but not in dispute. The province also concedes the second ground: that the decision to design a system that allows for the granting of mineral claims without consultation constitutes “Crown conduct”.

[106]   Hence, this case ultimately turns on whether the third element of the Haida Test is satisfied. More specifically, the core issue in this case is whether the operation of the current mineral tenure system adversely affects an Aboriginal claim or right. It is against the backdrop of this issue that I define the scope of the record for this petition.

[107]   Again, because there is no “record of the proceeding” in preparation for the hearing, the parties were left to construct an evidentiary record from scratch. The parties filed approximately 50 affidavits.

[108]   The parties disagree over what information should be included in the record. There is tension between the “Record” that the petitioners propose, and the “Record” the province proposes. In the subsequent sections, I summarize the evidence led by the parties and set out my findings regarding admissibility.

[109]   The province submits that the record should include information pertaining to the following:

[110]   The province relies on these categories of evidence to satisfy its onus in establishing the correctness of the CGC’s decisions. The province argues that that evidence is required to provide context to the underlying CGC decisions.

[111]   I accept that the province’s evidence in the general areas set out above is admissible. In my opinion, I need to admit evidence regarding the context of the legislative scheme and the CGC’s implementation of that scheme. Such evidence explains the underpinning of the Crown’s position that the MTA does not cause adverse impacts.

[112]   I accept the province’s submission on this point to an extent. The province acknowledges that evidence relating to the benefits of mining and the administrative problems presented by consultation do not constitute information that is relevant to the Haida Test. In other words, the province acknowledges that its obligation to consult cannot be avoided or delayed on the basis that mining is good for the economy or that consultation will be difficult.

[113]   I have set out below:

[114]   Except where noted otherwise, I admit the province’s evidence discussed in the subsequent sections as relevant evidence forming part of the “Record”.

[115]   BC’s current mineral tenure regime finds its roots in colonial legislation first codified in the Gold Fields Act, 1859. That Act introduced the 19th century concept of “free miners” and the “free entry” system to the colony of BC. The concept of “free entry” in Canada is predicated on two legal assertions (by the government):

[116]   From the earliest days of exploration, free miners were given license to roam the colony, and later the province, and physically stake claims. Once an area was “staked” or claimed, certain rights accrued to the claim-holder. Those rights  protected their interests.

[117]   The province has modified and amended the legislation over time. Until 1958, the province made “Crown mineral grants” of the rights to minerals. Some of those grants continue to exist. Crown mineral grants held both surface and subsurface rights.

[118]   From 1958 to 2004, the physical staking of claims remained the practice in BC. In 2004, the province amended the MTA and adopted an online system for claims registration of mineral claims. That system remains in place today. Notably, the creation of the online registration system pre-dated the decision of the Supreme Court of Canada in Haida, and the creation of the Haida Test. It follows that the CGC could not have anticipated the Haida Test when developing the system.

[119]   Mineral claims (and some mining activities) are governed by the MTA and the associated MTAR. Other statutes, regulations, and policies concerning land use, rights of way, and compensation are also involved. Other legislation that influences the mineral tenure system includes:

[120]   The MTA and Mines Act regulate the spectrum of activities ranging from mineral exploration to mineral extraction. In general, the MTA regulates the initial exploratory stages of the process related to identifying potential mineral deposits and securing rights to them. The Mines Act regulates the later stages, which include establishing a mine and extracting minerals from the claim area.

[121]   The MTA is administered by the CGC and the Mineral Titles Branch (“MTB”), which grant licences and permits and also rule on disputes under the MTA.

[122]   In order to become a registered holder of a mineral claim, a person must first acquire a free miner certificate (“FMC”): MTA, s. 7. A free miner certificate is available to a person over the age of 18 ordinarily resident in Canada, or a Canadian corporation or partnership. Upon registration and payment of a fee of $25 for an individual ($500 for a corporation), the CGC must issue an FMC to the applicant: s. 8(2).

[123]   Section 11(1) gives a free miner the right to enter upon, and explore for minerals, on all lands where minerals are vested in or reserved to the government.

[124]   Prior to 2004, the registration of mineral claims required physical attendance at the site of the claim. In 2004, the MTA was amended to provide for an online registry and electronic registration of mineral claims: s. 6.2.

[125]   In addition to any requirements under the regulations, the CGC may:

[126]   I return to these powers below when discussing the CGC’s discretion.

[127]   Section 6.3 provides that “[a] person may register a claim in accordance with the regulations.” That person must be a free miner.

[128]   The online mineral tenures registry provides access to a map of the province overlaid with a grid delineating blocks or “cells” of registered and available claims. Because some cells are partially overlaid with older claims (registered prior to 1958,  the Crown mineral grants), it is possible to register a claim to part of a cell. A free miner can click on the map to choose available individual cells or groups of adjacent cells and register them as claims at a prescribed fee of $1.75 per hectare. The MTAR sets out that an individual claim may consist of up to 100 complete or partial adjoining cells: s. 4(1). Overlapping claims are not allowed in the online system. Once the fee is paid, the registration becomes effective. The person registering the claim is referred to as the “recorded holder”.

[129]   Section 14(1) of the MTA gives the holder of a mineral claim the right to enter onto the surface of the claim to conduct exploratory activities. However, the manner of exploring is limited. I discuss those limitations below.

[130]   In addition to Crown lands, mineral claims can be granted over fee simple lands. However, the holder of title to the surface retains some limited protections. For example, a free miner cannot explore on land occupied by, or immediately surrounding, a building, an orchard, land under current cultivation, land lawfully occupied for mining purposes, or land in an ecological reserve or park.

[131]   Under s. 17(1), the minister may impose restrictions on the use of land for mineral activities to protect cultural heritage resources, or for other reasons. This can occur despite the fact that mineral claims exist in that area. The imposition of this type of restriction does not result in compensation for the recorded holder. However, there can be compensation if the province expropriates land under s. 11 of the Park Act, R.S.B.C. 1996, c. 344. Section 22 of the MTA also gives the CGC the power to establish mineral reserve areas in which claims cannot be registered.

[132]   The MTA provides that the recorded holder of the mineral claim has both rights and obligations. Further, although a certain amount of work is required, the scope of that work is limited, unless a further permit or lease is obtained.

[133]   In order to maintain a mineral claim, the holder must undertake regular work, measured on an annual basis, or pay a fee in lieu of that work. All work must be performed with hand tools. The use of machinery or explosives on mineral claims requires a permit under the Mines Act.

[134]   The recorded holder is required to do work to maintain the mineral claim in order to “continue” the claim from year to year (s. 29). That work includes collecting and extracting samples, digging trenches, and removing ore. Again, those activities are both required and limited:

[135]   As discussed below, the petitioners point to these allowances as evidence of the substantial destruction of, or interference with, the land that is authorized by the issuance of a mineral claim. In response, the province says that these figures represent “limits”, not “allowances”. The province says that, because the recorded holder is limited to the use of hand tools, it would be impossible to extract these volumes of ore.

[136]   The petitioners submit that the grant of a mineral claim transfers a “bundle of rights” to the recorded holder. The province does not accept the petitioner’s full description. However, it is helpful to set out the petitioners’ position regarding what the “bundle of rights” includes:

[137]   The province does not accept this characterization of the “bundle of rights”. Specifically, the province submits that the right granted to the minerals (pursuant to s. 28(2)) is not an “ownership” interest, but a “chattel” interest. I address this distinction below. In short, the province submits that a “chattel” interest is a minor form of grant and that there is no real potential impact on the petitioners’ Aboriginal rights and title.

[138]   If a recorded holder finds minerals, or evidence of the existence of minerals, they will want to proceed with further activities that are not authorized by the mere authorization of the mineral claim. In order to proceed, they must apply for a “mineral lease” under Part 3 of the MTA. A mineral lease is the next step in the process toward a mining permit under the Mines Act.

[139]   A recorded holder of a mineral claim may apply to convert a mineral claim to a mineral lease by taking the steps prescribed by the MTA, s. 42(1), namely:

[140]   Once these requirements are met, s. 42(4) states that the CGC must issue the mining lease. The maximum length of any mining lease term is 30 years.

[141]   The petitioners note the mandatory wording of s. 42(4). They submit that this mandatory wording means that the right to convert a mineral claim to a mineral lease is a part of the “bundle of rights” associated with a mineral claim.

[142]   Obtaining a mineral lease conveys a greater interest to the minerals within the leasehold. Mineral leases fall within Part 3 of the MTA which includes the following provision:

[143]   The petitioners submit that, because the recorded holder of a mineral claim has a right to convert that claim into a mineral lease, it follows that the granting of a mineral claim transfers (at least the right to proceed to) an “interest in land” which “conveys to the lessee the minerals” (subject to valid charges).

[144]   As noted, the province’s position is that, at the “mineral lease” stage, consultation is required with any First Nation that asserts rights or title over the area of the mineral lease. For my discussion below, it is important to note that there is no mention of the “duty to consult” within Part 3 of the MTA. In other words, the CGC used their discretion to implement consultation at that stage. Further, s. 42(4) is clear that the CGC must issue the mining lease. Hence, the impact of any consultation is questionable. However, that is not the issue before me.

[145]   Obtaining a mineral lease does not authorize the lessee to conduct mining activities. Instead, it is the Mines Act that governs all activities beyond exploration. Thus, the Mines Act regulates all activities involving the excavation of the ground using equipment (or explosives) and the extraction or production of minerals for sale. The definition in s. 1 of the Mines Act provides that a "mine" includes:

[146]    Activities undertaken in relation to a mine under the Mines Act require permits or “Notices of Work” and other approvals such as environmental assessments. Exploratory works under the MTA and MTAR do not require Mines Act approvals.

[147]   In addition to legislation and regulations, the CGC and the MTB also provide Information Updates. I mentioned above Information Update No. 38 which gives guidance on mineral-related activities that do not meet the definition of a “mine” and therefore do not require a permit. I discuss that update in more detail below when discussing the province’s affidavit evidence.

[148]   With that overview of the legislative context, I now turn to the evidence of the province, some of which touches on the Ministry’s interpretation of the legislation.

[149]   The province tendered 16 affidavits which flesh out the legislative scheme. The affidavits address the following general areas:

[150]   I address each sub-heading below, along with my reason for either admitting, or excluding, the information into evidence. In order to be admissible, the information must provide insight into the decision-making process of the CGC and the MTB or it must assist me in coming to the appropriate remedy. As a general overview, the information that I discuss below is either general background or explanation of the legislative scheme.

[151]   The province tenders the affidavits of Mr. Mark Messmer, who was the CGC from 2016 to 2023. With the one exception noted below, I accept Mr. Messmer’s evidence as part of the general background information that informed the decisions of the CGC.

[152]   Affidavit #1 of Mark Messmer (in the Gitxaala petition) (“Messmer Affidavit”) outlines the operation of the MTO which commenced in 2004.

[153]   Prior to 2004, in order to register a mineral claim, a free miner was required to personally attend at the claimed site, as well as submit paper forms. The MTO replaced the prior “staking” system in 2004 and created a purely online registration system for mineral claims. To accomplish this objective, the MTO divided the province into “cells”, with each cell being a near-rectangle of land approximately 20 hectares in size. Through the MTO portal, free miners can register or “continue” their mineral claims, submit applications for mineral leases, and pay rents and fees. The MTO is also a searchable database. Since 2004, all new registrations have occurred through the MTO. Despite the passage of time, some pre-2004 “legacy claims” continue in existence. The CGC is responsible to maintain the MTO.

[154]   Messmer Affidavit indicates that registration of mineral claims through the MTO is an administrative, automated function. That fact is not in dispute. As discussed above, that is not the issue in these petitions. The issue in these petitions relates to the higher-level decisions. The Messmer Affidavit was sworn before the nature of the legal issues in the litigation had crystallized.

[155]   The registration of a mineral claim does prompt some interaction with First Nations:

[156]   It follows that it is feasible for the MTB to provide notice to both the free miner and the First Nation(s) at the time of registration. Further, this requisition by the CGC and the MTB clearly indicates that they anticipated instituting an automatic notice to First Nations without requiring any amendment to the legislation.

[157]   Mr. Messmer notes that the MTA allows for the closing of areas to the registration of mineral claims. The mechanism under the statute allows designated lands to be removed from the definition of “mineral lands”. That term means lands in which the right to explore for, develop, and produce minerals is vested in or reserved to the government. Mr. Messmer says:

[158]   Part of the relief sought by the petitioners includes an injunction preventing the registration of any further mineral claims in their territories until a consultation process is in place. Mr. Messmer acknowledges that the CGC has established certain areas as “no registration reserves” where First Nations’ have settled claims. In creating those reserves, the CGC relied upon the authority provided in s. 22 of the MTA. He notes that these “no registration reserves” are typically designated in highly populated areas. However, this process is also used when the province’s negotiations with a First Nation have reached the cabinet level (i.e., near ratification) and the settlement might result in a transfer of land. The CGC creates these “no registration reserves” to “lock down” the territory in question.

[159]   Regarding the disturbance to the land, Mr. Messmer notes that the legislative scheme requires:

[160]   At para. 21 of the Messmer Affidavit, Mr. Messmer states that he does not believe the CGC has the discretion to “fundamentally change the claim registration system so as to make the registration of a claim contingent on prior decision-making informed by a notification and consultation process.” Further, he does not believe that it would be practically feasible to alter the system so as to provide for “pre-registration consultation” without changing any other part of the MTA. Still further, he does not believe that such a change would be within the parameters of the MTA in its current form.

[161]   In my opinion, the statements of Mr. Messmer at para. 21, constitute either his opinion, or a submission, regarding the proper interpretation of his authority under the MTA. At best, his statements provide some insight to his reasons for where the CGC “draws the line”. However, his conclusion on the scope of his discretion is certainly not determinative. Mr. Messmer’s opinion about the interpretation of the MTA is not “evidence”. Instead, his statements address legal issues that are for me to address. I place no weight on the opinions expressed in those statements.

[162]   This portion of my reasons consists partly of evidence and partly of the province’s submissions.

[163]   The province adduces this evidence to support its position that there is limited impact on the land from mineral exploration. In other words, the activities authorized under a mineral claim are limited and do not cause an adverse effect

[164]   The province’s position is that the registration of a “mineral claim” under the MTA is a preliminary step in the regulatory scheme, which occurs at the very early-stage of exploration activity. The province submits that the rights associated with a “mineral claim” are limited. Pursuant to s. 28 of the MTA, a “mineral claim” confers a “chattel interest” in the minerals.

[165]   The province concedes that s. 14(1) of the MTA provides that a claim also confers the right to “use, enter or occupy the surface of a claim … for the exploration or development or production”. However, those surface rights are subject to other provisions in the MTA, including the restriction on mining activity that falls under the Mines Act. Hence, the only “mining activity” that the recorded holder may carry out (without a permit) is low-impact, non-mechanized activity falling outside the definition of “mining activity”. I discuss the nature of those activities below.

[166]   The starting point regarding authorized activities is s. 17 of the MTAR which provides:

[167]   The petitioners and the province view these limits from different perspectives. I deal with the petitioners’ perspective below.

[168]   From the province’s perspective, while these may appear (to a non-miner) to be large allowable volumes of extraction, these amounts are typically for testing purposes at the exploration stage. This level of extraction would rarely represent continuous production for profit. If the miner intends to exceed these production limits on their mineral claim, they require a mining lease in substitution for its mineral claim.

[169]   Mr. Messmer acknowledges that the MTA and the MTAR do not purport to define, on a granular level, the types of work that are authorized within the boundaries of a mineral claim. For that reason, the MTB issues Information Updates. As noted above, the MTB released Information Update No. 38 in 2019 to further define the scope of authorized activities. I set out portions of the Information Update No. 38 below. That document begins:

[170]   Information Update No. 38 then sets out the MTB’s concept of what work can be performed on land without a Mines Act permit:

[171]   Information Update No. 38 then lists the activities that are authorized by a mineral claim:

[172]   As discussed in more detail below, the parties characterize the volume provisions of the MTAR and Information Update No. 38 from different perspectives:

[173]   The province places significant emphasis on the “nil or negligible disturbance” language in Information Update No. 38. It also emphasizes that the update limits the work done to “hand tools”. Hence, no machinery is involved at the mineral claim level.

[174]   To move from the exploration stage to the establishment of a producing mine, the applicant must first apply to convert the mineral claim into a mining lease under s. 42 of the MTA. This step is usually taken in conjunction with an application to the Major Mines Office for a “mining” permit under s. 10(1) of the Mines Act. As noted above, the CGC has no discretion here, and the granting of a mineral lease under s. 42 is mandatory. The granting of the lease carries with it the conveyance of the minerals: s. 48.

[175]   The province submits this evidence, in part, to rebut the evidence of the petitioners. As discussed below, the petitioners submit that the granting of a mineral claim, and a mineral lease, create “momentum” toward a mine. The petitioners argue that, despite consultation, it is difficult to derail the “runaway train” once the mining company commences the permitting process.

[176]   The province notes that the underpinning of the entire mining system is the requirement that a permit must be obtained under the Mines Act before the commencement of “any work in, on or about a mine”. This is specified in s. 10(1) of the Mines Act which states that “[b]efore starting any work in, on or about a mine, the owner, agent, manager or any other person must hold a permit issued by the chief permitting officer”.

[177]   The province says that the issuance of a permit under s. 10(1) of the Mines Act is a statutory decision-making process, entailing many areas of consultation, including with Indigenous groups. (In tendering this evidence, the province does not take the position that, because there is a duty to consult at this later stage, there is no need for consultation at the early stage. This evidence simply explains the permitting process and the reasons behind the choice of where to “draw the line”.)

[178]   The definition of a “mine” is broad and includes the “mechanical disturbance of the ground” and “exploratory drilling, excavation, processing”.

[179]   As a result of this broad definition of the term “mine” in the Mines Act, the s.10(1) permit requirement covers activities that may include even simple exploration activities. The ministry uses two categories of Mines Act, s. 10 permits to authorize “work in, on or about a mine” where the work is aimed at extraction of “minerals”. Permits for activities at the stage of exploring for minerals are called “MX” (or “exploration”) permits. Permits for activities at the stage of producing minerals for profit are called “M” (or “major mine”) permits.

[180]   The province concedes that s. 17 of the MTAR allows for some production of “ore” from a mineral claim. That production is limited:

[181]   However, Mr. Messmer says that this level of production typically is for testing purposes at the exploration stage, rather than being continuous production for profit. Thus, the policy of the chief permitting officer is to issue an MX permit authorizing “bulk sample” extraction on a mineral claim only if satisfied that the “bulk sample” is an advanced exploration step to support a defined resource model and to inform a future mine plan, and the extraction is not for the sole purpose of production. The idea behind the scheme is that, in order to engage in continuous production for profit, a proponent must have a “M” permit in place.

[182]   The provincial affidavits also provide information about the volume of mineral claims as at February 14, 2022:

[183]   Further, the province points to other statistics indicating the number of new claims versus lapsed claims in an average year:

[184]   Addressing the specific claims of the Gitxaala, Mr. Messmer notes:

[185]   Regarding the Ehattesaht Territories, Mr. Messmer states:

[186]   I describe below the Ehattesaht’s evidence regarding the activities of one of the respondents, Forest Crystals. On behalf of the province, that evidence is addressed by Mr. Donald Harrison in his affidavit #1. He says that Forest Crystals conducted illegal hand excavation for quartz crystals in 2018 in Ehattesaht Territory. He describes that as a discrete and isolated incident of non-compliance, which attracted a swift response from the Ministry. Those steps included full reclamation of the site within 18 months of initial enforcement action. Shortly after viewing photographs depicting the extent of the non-permitted excavation, which exceeded the limits of Information Update No. 38, a mines inspector issued a stop-work order. When Forest Crystals subsequently applied for a Mines Act permit to authorize the activity, a mines inspector rejected the application because of the potential for impacts to Aboriginal interests.

[187]   The province submits evidence on the timeline for legislative reform as part of the underpinning to its submission that any remedy should be suspended. This evidence outlines the government’s prior efforts in amending the MTA.

[188]   Mr. Peter Wijtkamp, an executive director in the ministry’s Policy and Competitiveness Branch, states that the ministry has recognized for several years that the current legislative scheme could benefit from modernization and greater responsiveness to the concerns of Indigenous peoples around mineral exploration and mining within their asserted traditional territories.

[189]   With those goals in mind, the ministry engaged with First Nations and industry stakeholders in 2017 to 2019 with a view to amending the MTA. He advises that the topics discussed in 2019 included:

[190]   Mr. Wijtkamp says that the ministry received pushback on the concept of reducing the “bundle of rights” conferred with a mineral claim. The mining industry felt the reforms went too far. The First Nations representatives felt they did not go far enough. As a result of that impasse, the ministry decided to pause the process with the idea that the province would later incorporate the concepts into broader work being planned and undertaken pursuant to DRIPA (which I discuss below).

[191]   Still on the topic of legislative reform, the province notes that, following a similar case in Yukon, where a duty to consult was found by the Yukon Court of Appeal in 2012, the work of reforming the Yukon legislative scheme continues, despite the effluxion of more than a decade. I discuss that decision, Ross River Dena Council v. Government of Yukon, 2012 YKCA 14 [Ross River 2012], in detail below. The province’s point is, in effect, that these things take time.

[192]   The province tenders this evidence primarily in relation to its submission regarding the appropriate remedy. The province acknowledges that economic benefit cannot displace the duty to consult.

[193]   As discussed below, the province submits that any declaration or injunction should be suspended so as to achieve the goals of both reconciliation and continuing the economic benefits of the mining industry for all British Columbians.

[194]   Regarding the value of mining, the province notes that mineral resources are hidden under the surface of the land. The mineral resources across BC have not been exhaustively investigated or defined. The geography of BC presents massive remote areas with difficult terrain and limited infrastructure. Many parts of the province remain underexplored.

[195]   The province submits that mineral exploration is investment-intensive and high-risk business. Mineral resources generate economic returns only after a lengthy period of investment in exploration and development. It can take decades between initial exploration and the establishment of a mine.

[196]   Much mineral exploration will be fruitless, leading only to the conclusion that an area contains no resources worth mining. The probability of successfully establishing a mine is very low. Despite the existence of more than 30,000 mineral claims, BC has only 16 operating “major mines” where commercial-scale extraction of minerals is occurring.

[197]   Despite the high-risk nature of the enterprise, the province estimates that in 2021, exploration companies spent $660 million on mineral projects.

[198]   The province also provided evidence regarding the impact of the mining industry and mining exploration on the provincial economy.

[199]   Turning to statistics, Mr. Wijtkamp advises that in 2020, the mining industry:

[200]   Further:

[201]   The thrust of Mr. Wijtkamp’s financial evidence is that mining is important to the province’s economy. This was also the major thrust of the submission of the Intervenor, the “Mineral Exploration Coalition” (which coalition consists of the Association for Mineral Exploration of BC, the Mining Association of BC, and the Prospectors and Developers Association of Canada). I accept that general premise.

[202]   I have addressed below, in summary fashion, the nature and content of the petitioners’ affidavit material. The main thrust of the affidavits relates to the adverse impacts from the standpoint of the petitioners. However, the affidavits address other issues. I have also set out the province’s position and my findings on the admissibility of that evidence.

[203]   I note, at the outset, that the province does not dispute the admissibility of evidence that tends to establish either “general background” or adverse impact. In that regard, the province does not dispute the admissibility of the petitioners’ evidence:

[204]   However, as I outline below, the province takes issue with significant portions of the petitioners’ affidavit material. The province takes more issue with Gitxaala’s evidence than Ehattesaht’s, largely as a result of the fact that Gitxaala tendered more affidavit material covering a greater range of topics. The primary objections raised by the province are:

[205]   The Ehattesaht evidence is divided into separate areas, each of which builds on the other. The evidence consists of two main supporting affidavits with a further two affidavits filed in reply to the province’s material. I set out below a summary of the information included in those affidavits.

[206]   There is no issue with the admissibility of the following evidence:

[207]   There are, however, areas of the Ehattesaht evidence that the province does not accept as being relevant or admissible. Specifically, the province objects to the portions of the evidence of Chief Simon John relating to certain activities of the respondent Forest Crystals. There is little dispute about what happened. However, the parties disagree on whether the facts indicate an adverse impact.

[208]   Ehattesaht says that the principals of Forest Crystals conducted activities including digging for crystals within the Ehattesaht territory. These activities caused concern for members of Ehattesaht. When Forest Crystals complained to the ministry about interference with one of their work pits, an MTB official advised Forest Crystals that they could erect fencing and place “No Trespassing” signs in the area. On this issue, I am satisfied that the MTB official was mistaken in relation to the advice provided. However, the perception of members of Ehattesaht was that they were being told where they could and could not go within their asserted territory.

[209]   Chief John says that, at some point, Forest Crystals’ activities exceeded the authorized bounds under their mineral claim. The province accepts this characterization. Following complaints from both Forest Crystals and Ehattesaht, the province wrote to Forest Crystals and indicated that their activities exceeded the authorization. At that point, Forest Crystals applied for a mining lease. Ehattesaht opposed Forest Crystals’ application for the mining lease and any further permits.

[210]   As noted above, the province submits that Forest Crystals was acting outside the authorization in its mineral claim. This breach led the MTB to issue a cease and desist letter to Forest Crystals. When Forest Crystals applied for a Mines Act permit to authorize the activity, a mines inspector rejected the application because of the potential for impacts to Aboriginal interests. The province says this example was an isolated incident and that, if anything, it shows that the system worked.

[211]   The province says two further things:

[212]   In answer to the province’s position, Chief John says that the problem arose before the time of the application for the mining lease. Forest Crystals conducted (authorized) activities within its mineral claim area including the digging and removal of crystals. Those actions removed the crystals, thus eliminating Ehattesaht’s ownership rights over them. Further, the granting of the mineral claim disregarded Ehattesaht’s right to make decisions about their territory. It also did physical damage to the territory, the sacred crystals, and Ehattesaht’s asserted claims for rights and title.

[213]   On this evidence I accept both positions:

[214]   With respect to the activities of Privateer, Chief John states that Privateer plans to undertake mining activity on Ehattesaht’s asserted territory in the Nomash area. A map of the area indicates that Privateer’s claims are located in an area relatively close to the main community of Ehattesaht.

[215]   Privateer’s submissions mirror those of the province. Its principal, Mr. Nigel Bester, states that, since 2017, the company has been acquiring mineral claims, and currently holds a number of (pre-1957) Crown mineral grants. Privateer has the intention of proceeding to a mining permit. It is currently in litigation with Ehattesaht over the exploration permit that was issued in 2017 and amended in 2020.

[216]   On this issue, I accept the position that, to the extent that the dispute between Ehattesaht and Privateer (and the province) relates to permitting beyond the mineral tenure stage, it is not relevant to this judicial review. Put another way, the facts disclose that during the further permitting stage, Ehattesaht has been actively involved in consultation with the province.

[217]    Gitxaala filed 17 affidavits (7 “main” and 10 “reply”). I address the admissible, the disputed, and the inadmissible information below.

[218]   There is no dispute regarding admissibility or the accuracy of the following background information supplied by the Gitxaala affidavits. The following evidence is relevant to the assessment of the First Nation’s perspective on the impact of mining exploration.

[219]   Gitxaala are the “People of the Salt Water”. Their language is Sm’algyax. They are the original inhabitants of the north coast of what is now BC. Gitxaala presence on Gitxaala Territory extends back into antiquity. They have an intimate and ancient relationship with their territory and the living things in it.

[220]   The territory over which Gitxaala asserts rights and title (again, the “Gitxaala Territory”) stretches from the Alaska Border south beyond Aristazabal Island, inland to the Skeena River watershed, and west to the Hecate Strait including the Queen Charlotte basin. The centre of this territory is Banks Island. Gitxaala describes Banks Island as their “breadbasket” or “table”, because of its particular abundance of food sources, including a variety of fish, shellfish, mammals, birds, and plant life. Banks Island has a long history of ownership, governance, and use by Gitxaała.

[221]   The members of Gitxaala are divided into four main “clans” and 23 “houses”, which can be understood as territory-holding lineages. Each house owns, governs, and is responsible for specific territories within the greater Gitxaala territory. Ownership and governance rights are exclusive in Gitxaala law.

[222]   Like the Ehattesaht, the Gitxaala have a strong connection to the land and all living things within its asserted territory. This strong connection is the basis of Gitxaała’s system of laws and spiritual beliefs.

[223]   The Gitxaala term for all living things within their territory is “naxnox”. Gitxaala’s spiritual beliefs include supernatural beings or nature spirits within the territory, known as Naxnanox. Gitxaala’s ancestors learned the values and beliefs that define their culture and system of laws through experiences with supernatural beings. According to Gitxaala beliefs, these supernatural beings have their own physical dens or territories within Gitxaala traditional territories which are sacred to the Gitxaala people.

[224]   Gitxaala’s system of laws (known as the “ayaawx”) have been passed down through generations. These laws and governance models are informed by Gitxaala spiritual beliefs. The leaders of the community are required to manage the territory with a view to sustaining abundance for future generations. Further, the laws regulate control over land use. Only certain people may access or use particular territories and the resources therein. The hereditary chief of a particular area has control over entry into that area. Counsel for Gitxaala submit that it is only by understanding their system of laws can one appreciate the impacts of Crown conduct on Gitxaala.

[225]   Gitxaala’s traditional practices include the taking and using of minerals. One example involves an area along the east coast of Banks Island called Ksgaxlam, which means “the place of the mountain where crayon (coloured chalk or marker) is found.” For centuries, the Gitxaala have collected that chalky substance, ochre, and used it to mix into paint. Gitxaala argues that any grant of a mineral claim over this area would prohibit Gitxaala from using these minerals or pursuing this traditional activity and right to use the lands.

[226]   As noted, the hereditary chiefs are responsible for the maintenance of Gitxaala Territory for future generations. That responsibility includes the maintenance of the homes, or dens, of the supernatural beings that are core to their spiritual beliefs. The mineral tenure system allows miners to stake claims over areas that constitute these supernatural dens. Overlapping mineral exploration constitutes disruption of these sacred areas and is forbidden under Gitxaala law.

[227]   Mineral exploration activities have been ongoing on Banks Island since the 1960s. I discuss below the issues relating to the Yellow Giant Mine on Banks Island. For the reasons I discuss below, I find that evidence relating to that mine are not part of the record of the CGC’s decision, and hence not relevant to this judicial review. In short, the problems with the Yellow Giant Mine, although significant, do not inform the issue of whether a duty to consult is owed at the mineral claim stage.

[228]   However, as general background information, I accept that Gitxaala, as a community, gained a heightened awareness and antipathy to mining activities after the Yellow Giant Mine closed down and toxic spills occurred in 2015. The province does not dispute that the mine was abandoned and that it continues to require remediation.

[229]   Gitxaala’s evidence described above is admissible.

[230]   Gitxaala submits that the evidence described above is relevant to a number of issues. Situations such as the Yellow Giant Mine, and the registration of mineral claims on Gitxaala Territory, bring shame to all the houses by virtue of disrespectful or incorrect behaviour. This is known as “dirtying the blanket.” All the Gitxaala chiefs are responsible for responding to these actions which breach Gitxaala law. As discussed below, Gitxaala submits that the actions of the Crown affect the territory. All chiefs must ensure corrective action is taken. This petition is itself a corrective action taken by the Gitxaala hereditary chiefs.

[231]   In the context of the paragraphs above, Gitxaala submits that the mineral tenure regime is an attack on Gitxaala society. In that regard, Gitxaala experienced Crown conduct, pursuant to the mineral tenure regime, as an attack on multiple fronts:

[232]   As noted, the evidence describe above is not in dispute.

[233]   The province argues that parts of the Gitxaala evidence (below) are not admissible on the basis that they are not relevant, or on the basis that there is conflict with other evidence.

[234]   The affidavits filed by Gitxaala include information relating to:

[235]   First, Gitxaala notes the longstanding mineral claims on its territories to establish the indefinite tenure created by the registration system.

[236]   Second, addressing the Yellow Giant Mine, Gitxaala submits that the province:

[237]   Hence, Gitxaala submits that, despite consultation at the mineral lease and Mines Act permit stage, it is difficult to derail the “runaway train” once the mining company commences the permitting process.

[238]   Gitxaala submitted evidence of the mineral tenure system in the state of Northern Australia. That material proffers evidence of another jurisdiction wherein consultation with First Nations occurs at the mineral claim stage. This evidence was buttressed by submissions on behalf of the intervenors, First Tellurium Corp. and Kingston Geoscience Ltd. Those companies, based in Ontario, engage in consultation at the exploration stage.

[239]   Gitxaala also put forward evidence from an industry group called IRMA. IRMA has published draft standards that require consultation with Indigenous groups. These standards were also the subject of the submissions of the intervenor, the ENGO Coalition.

[240]   The province responds to each of these areas as follows:

[241]   On the issue of admissibility, I accept the general propositions put forward by the province for the following reasons:

[242]   The province also disputes the admissibility of an affidavit and report relating to the regulation of mineral exploration in Northern Australia. Gitxaala tendered the report, at least in part, as evidence that mining exploration and consultation can co-exist. On this issue, I accept the submission of the province for two reasons:

[243]   Turning to the IRMA standards, I accept that the “draft” IRMA standards are not admissible as evidence of the industry practice. It stands to reason that the existing IRMA standards could be admissible as evidence of a standard that is upheld within a segment of the industry. However, those standards are clearly in flux. I place no weight on the IRMA standards

[244]   I further note that the province takes issue with the accuracy of the Gitxaala evidence regarding whether there was sufficient consultation before the permitting of the Yellow Giant Mine. Given the substantial negative impact of that mine closure and the need for remediation, it is not surprising that a significant portion of Gitxaala’s material addresses the consultation process during that permitting process. However, having found that the information about the mine is not relevant to my analysis, it follows that any dispute about the underpinning of that permitting process is also not relevant.

[245]   I have set out above my decision that Gitxaala’s affidavit material relating to the adverse impacts from the Yellow Giant Mine is not admissible because it is not relevant to the specific issue before me. However, I consider the affidavit material on that topic to provide general background relating to the overall position of Gitxaala and part of the impetus for this petition.

[246]   It follows from my discussion above that:

[247]   Having decided the procedural issues, I now proceed to the substantive issues.

[248]   As noted above, the province defines the ultimate question for this petition as a determination of whether the province “drew the line” in the right place. In other words, is the province correct in its position that the granting of a mineral claim does not trigger a duty to consult? While the petitioners raise some concerns with that characterization, I find it a useful starting point for my analysis.

[249]   The province, meaning either the CGC or the MTB, decided that its duty to consult arises at some point after the mineral tenure stage. In other words:

[250]   In addressing this issue, I accept the submission of the petitioners that it is not relevant for my assessment whether consultation exists at a later step in the mineral exploration process. The considerations in the Haida Test do not ask whether there will be consultation at some later stage. Instead, the Haida Test looks at the circumstances faced by the province and the First Nation at each stage in the process. The very nature of the test is designed to determine when consultation should occur.

[251]   In addressing this issue, I have ordered my analysis as follows:

[252]   I note that each petitioner, for the sake of efficiency, focussed their submissions on a different legal issue respectively. Specifically, Ehattesaht focussed their submissions on the Haida Test and its relationship to s. 35 of the Constitution Act. Gitxaala focussed its arguments on UNDRIP and DRIPA.

[253]   Before delving into the submissions of the parties, I note that there is no significant dispute on the nature of the application of the Haida Test.

[254]   There are three elements to the Haida Test:

[255]   As noted above, the province concedes the first two elements. The only question for me to determine is whether the granting of mineral claims adversely affects a claim or right of the petitioners.

[256]   Further, as noted above, the sole question for me is whether the duty is triggered. I am not considering the “measures”, or the “depth”, of the consultation that the province may be required to implement.

[257]   An overview of the petitioners’ submissions can be summarized as follows:

[258]   As described above, the submissions of each petitioner overlap, but express the adverse impacts in slightly different terms. Due to the overlap, I have described them below in combined form.

[259]   The petitioners submit that the grant of mineral tenures has a number of existing and potential impacts on their rights. I describe those impacts in brief before delving into them in more detail. I divide them into two general groups:

[260]   I have addressed them in this fashion because, as discussed below, there are different considerations in respect of each type of impact.

[261]   I refer to the first group of impacts as “non-physical” to distinguish them from physical impacts such as the loss of minerals and other physical disturbances. However, there is overlap. For example, there can be disputes involving the (physical) disturbance of culturally or spiritually important land.

[262]   For the reasons discussed below:

[263]   The petitioners submit that the grant of a mineral claim results in the following non-physical adverse impacts on their rights and title:

[264]   I address the legal order, governance, and decision making separately, and then discuss the cultural and spiritual aspects.

[265]   In answer to these propositions, the province argues that an adverse impact (to a non-physical right) does not arise simply because mineral claim registrations are conceptually inconsistent with the present exercise of Aboriginal title rights. The province says the law is clear that the relief to which a First Nation is entitled is different at the “asserting” stage than at the “Aboriginal title” stage.

[266]   The areas of Aboriginal title were identified in Tsilhqot’in Nation at para. 73:

[267]   The province submits that those rights are associated with (and follow the settlement of) Aboriginal title. They are not rights that can be asserted or enforced prior to the settlement of Aboriginal title. The province submits that the petitioners’ arguments on adverse impact focus on a conceptual inconsistency (that currently exists) between:

[268]   The province submits that the petitioners’ submissions on these issues overlook the temporal aspect of both the First Nation’s asserted rights and the mineral claims.

[269]   First, the province addresses the temporal element of the First Nation’s asserted rights. At present (i.e., before settlement of the petitioners’ title claims), the Crown retains the obligation to manage the land and resources, subject to the duty to consult when it is triggered. This means that my assessment of whether there is an adverse impact (on these rights) cannot proceed on the basis of the enjoyment of claimed Aboriginal title at present, as if these rights had already been declared. Instead, the province submits that the analysis must be forward-looking. The proper analysis requires an examination of whether the impact of the Crown conduct (i.e., granting mineral claims) will affect the Indigenous group’s ability to fully realize the benefits of Aboriginal title in the future (i.e., after settlement of title).

[270]   For an example, the province points to Gitxaala’s assertion that, under its legal structure, the hereditary chiefs decide who can access their lands. At present, the province decides who can access those lands. Those general provisions are contained in the Land Act. The province says that it is not an adverse impact that people can access Gitxaala’s asserted territories. However, once Gitxaala has established Aboriginal title, then Gitxaala’s system of law may govern. In the meantime, the province administers the territory in a manner that preserves it so that, after settlement of title, Gitxaala will be able to govern pursuant to its legal order.

[271]   In other words, the province submits that, at this stage, the hereditary chiefs do not have the right to determine who enters their lands. Gitxaala law does not yet govern. That is an asserted right. Hence, it is not an adverse impact for the province to allow individuals onto Gitxaala’s asserted territory. If (current) access to the land constituted an adverse impact, then, in effect, a duty to consult would be triggered simply by the province authorizing a person to walk on the land. The province says that the law does not support that assertion.

[272]   The province submits that this point was made clear in the statement of the Supreme Court of Canada in Rio Tinto at para. 46:

[273]   The province submits that, at some point in the future, the petitioners will settle their title claims. At that point, the petitioners will be able to exercise these rights (to the extent they have been settled or negotiated).

[274]   The province draws an analogy to the decision of the Yukon Court of Appeal in Ross River Dena Council v. Yukon, 2020 YKCA 10 [Ross River 2020] (which decision is to be distinguished from Ross River 2012).

[275]   It is important for the reader to understand that the Ross River litigation proceeded in three parts.

[276]   First, in 2012, the Yukon Court of Appeal decided Ross River 2012, a case which related to quartz mineral claims. The plaintiff, Ross River Dena Council, was successful. (I discuss this decision in detail below.)

[277]   Second, in Ross River Dena Council v. Yukon (Government of), 2015 YKSC 45, the same plaintiff sought a declaration that the issuance of hunting licences “has the potential to adversely affect Aboriginal title and the right to hunt in the Ross River Area” (at para. 58). In that case, the rights asserted by the plaintiff related to the existing right to hunt. The court held that the duty to consult was triggered, but found that Yukon had sufficiently consulted with the plaintiff and, therefore, had fulfilled its duty. Hence, no declaration was necessary.

[278]   In 2019 (at the trial level) and 2020 (at the appellate level), the same plaintiff sought a declaration that Yukon had a duty to consult before issuing hunting licences because of the First Nation’s asserted title rights. The plaintiff cited the title rights described at para. 73 of Tsilhqot’in Nation (described above).

[279]   The council is referenced in the decisions as “RRDC”. This third action was dismissed at trial: Ross River Dena Council v. Yukon, 2019 YKSC 26.

[280]   On appeal, the court’s analysis in Ross River 2020 at paras. 9–10, in refusing the supplementary declaration, proceeded from the principle that:

[281]   The court elaborated its reasoning at paras. 21–23:

[282]   The province notes that our Court of Appeal endorsed this temporal aspect of the right in Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215 [Gamlaxyeltxw BCCA]. That decision dealt with the scope of the duty to consult when there were overlapping claims as between First Nations. Justice Hunter wrote for the court:

[283]   The province says that the petitioners’ submission essentially breaks down into the following question: Does the registration of a mineral claim raise the prospect that the presence of this proprietary interest, in and of itself, may intrude on the enjoyment of Aboriginal title in the future?

[284]   The province submits that, on this question, it is necessary to answer the practical question of: What would happen to the mineral claim if and when there is a future declaration of Indigenous title over the territory where the mineral claims are located?

[285]   First, the province notes that mineral claims are temporary and must be continued from year to year. The province submits that the amount of disturbance of the land pursuant to a mineral claim (without further permit) is “nil or negligible”. (I discuss this concept, and the petitioners’ perspectives, below.)

[286]   The province acknowledges that, upon declaration of Aboriginal title, the existing mineral claims would continue. However, from a practical level, those continuing mineral claims would resolve themselves.

[287]   The province submits that, after a declaration of Aboriginal title, if the holder wished to develop the claim further, then one of two scenarios would occur. Either:

[288]   In the second scenario, if the Crown believed that the broader public good should override the title-holding First Nation’s wishes, then the government would have to show (Tsilhqot’in at para. 77):

[289]   The province submits that any mining operation would have a very difficult time meeting the justification test. The threshold is high. In other words, the second scenario (proceeding without the First Nation’s consent) is not going to happen.

[290]   The province concedes that the recorded holder of the mineral claim could seek to continue (without further permit) to access and explore the land. However, in reality, this is in only a hypothetical problem. In order to make mineral exploration financially viable, the end goal must be the development of a mine. Hence, once the First Nation has achieved Indigenous title, the miner would require the consent of the First Nation to move past the mineral claim stage. Hence, in reality, the holders of any mineral claims would attempt to achieve consent to further development, and if they failed, they would walk away. Again, this brings the argument back to the temporary nature of the mineral claim. If the First Nation’s consent is not obtained, the mineral claim will be abandoned because it has no value.

[291]   On the basis of the analysis above, the province submits that the petitioners’ title interests (as they may exist in the future) are protected. The mere existence of a mineral claim within asserted territory causes no irrevocable prejudice to the First Nation’s future title rights to govern according to their legal order. While the mineral claim may notionally be “on the books”, it will effectively be sterilized from further development following the declaration of title (unless the First Nation consents to the development of a mine).

[292]   Thus, following declaration of Indigenous title, each petitioner will be able to govern their territories according to their system of laws. The province has not ceded any right to any other entity. Decisions regarding land use can be pursued by the First Nation.

[293]   On this issue, the petitioners submit that the province’s argument puts forward a narrow and technical interpretation of the honour of the Crown.

[294]   They cite the reasoning in Taku River Tlingit First Nation v. British Columbia, 2004 SCC 74:

[295]   Ehattesaht points to the cumulative effect of mineral claim registration, especially in areas in the Nomash and Zeballos River watersheds. Those areas are close to Ehattesaht’s main community and very important for their Aboriginal rights and way of life. These multiple claims create a cumulative effect that negatively impacts Ehattesaht’s present and future use of its territory, threatening Ehattesaht’s way of life and cultural security. This cumulative effect provides context to, and should inform consultation with respect to, the grants of mineral tenures.

[296]   Gitxaala submits that a grant of mineral rights may adversely impact Gitxaala’s legal order by ignoring and thereby undermining Gitxaala law.

[297]   Gitxaala cites Reece v. Canada (Attorney General), 2022 BCSC 865, to support the proposition that, for purposes of an interlocutory injunction, a transfer of lands would involve “irreparable harm” to an Indigenous Nation’s legal regime. In Reece at para. 114, the affiants articulated the impacts as including harm to their legal system:

[298]   In Reece, Justice Baker concluded that this articulation of impacts “is sufficiently grounded in the evidence; it is not mere speculation or assertion of possibility. I accept the harm as articulated by [the Indigenous Nations’ affiants] will be irreparable for the Allied Tribes”: para. 124. I address this decision below.

[299]   Gitxaala further submits that, in Gamlaxyeltxw BCSC, the province’s disregard of the Gitanyow Nation’s own laws represented an “affront” to the Nation that constituted serious “potential injury” to those Indigenous laws, and therefore contributed to a consultation duty at the higher end of the spectrum. The issue in that case was the determination of the total annual harvest (or “TAH”) of moose in the Nass Wildlife Area:

[300]   I address this decision below.

[301]   Gitxaala further submits that, in a “duty to consult” context, the courts have recognized that the province’s decisions may directly impact the exercise of an Indigenous Nation’s own laws, and that such an impact engages the duty to consult and accommodate. For example, Wii’litswx v. BC (Minister of Forests), 2008 BCSC 1139, dealt with consultation regarding forest licence replacements in the traditional territory of the Gitanyow Nation. When addressing the issue of the authority of hereditary chiefs over their family territory, or “wilp”, the court noted at para. 26:

[302]   As discussed below, Gitxaala focusses upon the underlined words. I address this case below. However, it is clear that para. 26 discusses a mix of current physical adverse impacts (destroyed cabins, financial hardship) as well as disruptions in the application of the Gitanyow legal order.

[303]   Gitxaala notes that the Court in Wii’litswx concluded, at para. 247, that:

[304]   Gitxaala submits that the province granting mineral claims on Banks Island is a serious affront to Gitxaala’s legal order, because it ignores, and is contrary to, Gitxaala law, or ayaawx. The grants of mineral claims purports to authorize third parties to act contrary to the ayaawx. A grant is essentially contemptuous conduct that undermines the rule of Gitxaala law.

[305]   In my opinion, the province’s characterization of the law in this area is the correct one. In other words, the obligation of the Crown is to administer the territories until such time as Aboriginal title is settled. 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.

[306]   It follows that the province administering the territory (at present) in a manner that does not accord with the First Nations’ system of law, governance or management, does not create an adverse impact that triggers consultation (based solely on those rights). For the duty to consult to be triggered, the impugned Crown conduct must in some way impede the petitioners’ ability to govern their land in the future, when title is established. The petitioners submit only that their ability to govern at present is interfered with. As I explain below, this is not the type of adverse impact contemplated by the Haida Test.

[307]   In my opinion, the cases that the petitioners rely upon do not assist in relation to the issues presented on this judicial review.

[308]   The Reece and Gamlaxyeltxw BCSC decisions relate to disputes involving multiple Indigenous groups against the province and the Nisga’a Nation.

[309]   In Reece, pursuant to the Nisga’a Final Agreement, the province proposed to transfer lands to the Nisga’a Nation. The plaintiff, on behalf of the Allied Tribes of Lax Kw’alaams and Metlakatla, asserted rights over some of those lands. The plaintiffs sought an injunction to prevent the transfer on the basis that the Allied Tribes would suffer irreparable harm if the land was transferred. That injunction was granted.

[310]   Justice Baker in Reece found that the Allied Tribes would, in fact, suffer irreparable harm if the province transferred the land. The court found that, in part, the construction of pipelines and other work could destroy evidence critical to establishing the Allied Tribes’ use and control of the lands at the relevant times. Further, any development of the lands would likely interfere with sites sacred to the Allied Tribes. In her reasons, Justice Baker accepted that the plaintiffs would suffer the adverse impacts described in para. 114 (above). However, in my opinion, the key to Justice Baker’s decision relates to the Crown losing control over the land and thus the ability to consult regarding its use. Justice Baker wrote at para. 124:

[311]   In my opinion, the decision in Reece does not turn on the existence of an adverse impact on the plaintiffs’ asserted legal system. Instead, the critical finding was the fact that, if the land was transferred to the Nisga’a, then the Crown would lose all control over it. This would result in a “significant impairment” of the right to be consulted about infringements on the plaintiffs’ rights and title regarding that land.

[312]   On that basis, I find that Reece does not assist the petitioners.

[313]   In Gamlaxyeltxw BCSC, the Gitanyow asserted a claim for Aboriginal rights over (again) territory that overlaps with an area subject to the Nisga’a Treaty. They sought the right to be consulted concerning two decisions to be made by the Minister of Forests pursuant to that Treaty:

[314]   I note that the discussion in para. 261 (copied above) relates to the total annual harvest of moose. As noted, on the facts of that case, the Minister already consulted with the plaintiffs about that harvest. Hence, the issue for the court was the degree of consultation, as noted in para. 262 of the decision (above). It follows that the adverse impact of the “total harvest” decision had already been recognized by the province. The asserted right to harvest moose was not in issue, except as it related to the depth of consultation.

[315]   However, on the other issue addressed in Gamlaxyeltxw BCSC, the Minister took the position that there was no duty to consult on the annual management plan (as distinct from the annual harvest) because there was no adverse impact on the plaintiffs. The chambers judge held that the duty to consult was not triggered by the approval of the annual management plan. That decision was upheld on appeal.

[316]   Hence, in my opinion, Gamlaxyeltxw BCSC does not assist the petitioners. Instead, it supports the province’s position. I return to the reasoning of the Court of Appeal in Gamlaxyeltxw BCCA:

[317]   This statement by the Court of Appeal is echoed in the province’s submission in the case before me.

[318]   My opinion on this issue is confirmed when I consider the practical implementation of the petitioners’ position, if followed to its logical conclusion:

[319]   On the basis of the analysis set out above, I find that the granting of mineral claims does not trigger a duty to consult insofar as the petitioners have argued that such claims adversely impact the petitioners’ asserted Aboriginal rights to manage their territories in accordance with their legal systems or systems of government.

[320]   Turning to the cultural and spiritual impacts, I reach a different conclusion.

[321]   In order to put this issue in context, I address three specific examples of geographic areas and geologic formations within the territories of the petitioners that have significant cultural and spiritual value.

[322]   Ehattesaht places great value on the existence of crystals in their territory. As noted above, Captain Cook’s diary references a carved crystal he received from the Ehattesaht in 1778.

[323]   Gitxaala points to two geographical areas of cultural and spiritual significance:

[324]   The evidence tendered by Gitxaala indicates that the location of the supernatural “dens” is a guarded secret within their culture. However, 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.

[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.

[326]   I further note that the concept of “adverse impacts” must be viewed through the lens of the First Nation. In other words, the duty to consult is not triggered when the province believes there is an adverse impact. The situation must be viewed from an Indigenous perspective. I discuss below, under the heading “Physical Impacts”, the province’s submission that the physical disturbance of the land (authorized by a mineral claim) is “nil or negligible”. However, viewed from the First Nation’s perspective, the activities of recorded holders could potentially damage areas that are culturally or spiritually significant to the petitioners. Hence, the perspective of the petitioners is an important consideration.

[327]   In my opinion, the petitioners’ submissions describe a situation where the physical impact of mining exploration intersects with the non-physical rights of the First Nation. For Ehattesaht, the collision arose when Forest Crystals staked a mineral claim and commenced the removal of crystals in Ehattesaht territory. For Gitxaala, the collision occurred with the prospect of mineral claims being allowed in the Ksgaxlam area and other spiritually significant areas.

[328]   On this issue, the Court of Appeal recently indicated its approval of decision makers recognizing spiritual beliefs as worthy of protection. In Redmond v. British Columbia, 2022 BCCA 72, Mr. Redmond applied for Crown land tenure to build a private, run-of-river hydroelectric generator. The river was located on the traditional territory of the Cheam First Nation and had great spiritual importance to them. Mr. Redmond argued that denial of his application infringed upon his freedom of religion. Justice Grauer wrote:

[329]   I accept the position taken by the petitioners in relation to the adverse impact of mineral claims on their spiritual beliefs. These are impacts that are felt currently. Further, the nature of the impact cannot be corrected such that the petitioners will be able to pursue their spiritual practices after the declaration of Indigenous title. If the spiritually significant sites are disturbed, the effect could be permanent.

[330]   On that basis, I find that the allowance of mineral claims without consultation creates an adverse impact on the petitioners’ Aboriginal rights regarding their cultural and spiritual beliefs.

[331]   I pause to note that the petitioners point to these examples as being both indicative of the problem and illuminating of the solution. They submit that if consultation occurred, then specific sensitive areas and formations could be identified and protected. I discuss below the specific powers in s. 17 of the MTA which provide for the ministry to protect a "cultural heritage resource" which term includes a location that is of cultural significant to an Aboriginal people.

[332]   The petitioners submit that the grant of a mineral claim results in the following physical adverse impacts on their rights and title:

[333]   In support of these positions, the petitioners base their arguments on three decisions.

[334]   First, as noted above, the petitioners place significant weight on the decision of the Yukon Court of Appeal in Ross River 2012. In that case, the court opined that the grant of a mineral claim that involves a transfer of mineral rights results in an adverse impact on Aboriginal title. Justice Groberman for the court, wrote:

[335]   In addition to Ross River 2012, the petitioners rely on Haida where McLachlan C.J. referred to the exploitation of resources on claimed land as an example of conduct inconsistent with the honour of the Crown. Specifically, at para. 27:

[336]   The petitioners further rely on the underlying statement in Delgamuukw at para. 122:

[337]   The core of this issue turns on whether the granting of any interest in mineral triggers a duty to consult because, in and of itself, it results in an adverse impact.

[338]   The petitioners also submit that the provincial grant of mineral claims creates a monetary value upon which third parties can capitalize. On this point, the petitioners point to the evidence of the province’s expert, Mr. Hicken, who states:

[339]   Hence, the petitioners submit that the granting of mineral tenure creates value for the recorded holder (and eliminates value for the First Nation) in two ways: first, in respect of the transfer of the chattel interest in the minerals themselves; and second, in the prospective investment in the mineral claim. They submit that the entire point of mineral exploration is the potential of financial gain from mining activity, whether through mining or marketing. Put differently, the purpose of granting mineral claims is to enable third parties to exploit a particular resource.

[340]   The petitioners cite the Supreme Court of Canada’s decision in Tsilhqot’in Nation where the McLachlan C.J. boiled the issue down (at para. 70) that “[i]n simple terms, the title holders have the right to the benefits associated with the land -- to use it, enjoy it and profit from its economic development.”

[341]   Hence, the petitioners submit there is a direct conflict between the rights granted to recorded holders and their own Aboriginal rights and title. Regardless of the nature of the transfer (chattel or otherwise), the grant is a property right. It creates access to the value and the benefit of the minerals that is held by the recorded holder as long as the mineral claim is extant.

[342]   Further, the petitioners point to the significant (from their perspective) disturbance of the territory that is permitted under a mineral claim. I discussed above the limits on trenching and digging. While the province points to the “nil or negligible” language in Information Update No. 38, Ehattesaht notes that there are more than 100 active mineral tenures on their small territory. Hence, the potential exists for substantial disturbance of the land.

[343]   In broad overview, the province makes the following submissions on the issue of whether the physical impacts identified by the petitioners trigger the duty to consult:

[344]   I discuss each of the province’s arguments in greater detail below.

[345]   The province’s position is that the holders of mineral claims are only permitted to engage in activities that cause a “nil or negligible” disturbance to the land. This level of disturbance, the province argues, does not trigger the duty to consult.

[346]   I noted above that the petitioners and the province disagree on the amount of physical work that can be performed on a mineral claim “cell.” The province notes that there is a minimum amount of work that is required each year. That work includes the collecting and extracting of samples, digging trenches, and removing ore. Again, those activities are both required and limited. The maximum amount of work allowed is in the following areas:

[347]   The petitioners point to these allowances as evidence of the substantial disturbance to the land. In response, the province says that these figures represent “limits” not “allowances”. The province says that, because the miner is limited to the use of hand tools, it would be impossible to extract these volumes of ore.

[348]   The province notes that, under the legislative and regulatory scheme, there is a temporal aspect to any mineral claim. Although mineral claims can be continued, they ultimately lapse or expire. That temporal, or temporary, aspect means that when the Crown grants a mineral claim, the recorded holder’s control over the lands and minerals will eventually revert back to the Crown. The Crown acknowledges that if further permitting and mining occurs, then there is a ceding of more title. However, those steps do not occur without consultation with First Nations.

[349]   Further, the province repeats its submission that the assessment of adverse impacts (under the Haida Test) cannot proceed on the basis that the effect of contemplated Crown conduct on the enjoyment of claimed Aboriginal title at present, as if those rights had already been declared.

[350]   Instead, the analysis must be forward-looking. The proper analysis requires examination of whether the impact of the Crown conduct on the land and resources (the subject-matter of the unresolved claim) will affect the First Nation’s ability to fully realize the benefits of Aboriginal title in the future, when title is finally declared. In support of this point, the province cites the statement of the Supreme Court of Canada in Rio Tinto at para. 46 (supra).

[351]   The province submits that the mineral claims will ultimately revert to the Crown at some point in the future. Hence, the Crown will be in a position to provide that interest to the First Nation when the ultimate declaration of the Aboriginal title is negotiated.

[352]   As noted, the petitioners rely heavily on para. 32 of Ross River 2012 (dealing with transfer of mineral rights) as support for their position that the grant of a mineral claim, which includes a transfer of rights to the minerals, impacts the petitioners’ property interests and the economic components of Aboriginal title. The province refers to the statements in para. 32 as the “shortcut” to adverse impacts.

[353]   The province submits that that I should not base my decision on Ross River 2012 for the following reasons:

[354]   I discuss each point below. The three points have significant overlap.

[355]   The province’s first position is that Ross River 2012 is a decision of the Yukon Court of Appeal and is not binding upon me. The province acknowledges that it is persuasive authority, but submits that it is no more persuasive than any appellate decision from another province or territory.

[356]   Second, the province submits that Ross River 2012 is distinguishable. The province submits that, to the extent the court focussed on “adverse impact” in Ross River 2012, that analysis is found at para. 33 where the court discusses the scope of exploration allowed under a “Class 1” exploration program. Those activities include: “the clearing of land, the construction of lines, corridors and temporary trails, the use of explosives, the removal of subsurface rock, and other specified activities”: para. 25.

[357]   The province submits that the Yukon legislation allowed significantly more disturbance of the land (i.e., use of explosives) than the MTA. On that basis the province submits that the court’s analysis in Ross River 2012 was based on significantly greater “adverse effect” to the land.

[358]   The province further submits that the transfer of the interest in the minerals under the Yukon statute is greater than the MTA. Under the Yukon legislation, the holder of a mineral claim receives a “chattel interest, equivalent to a lease of the minerals.” Under the MTA, the recorded holder receives only a “chattel interest.” This choice of language means that a mineral claim under the Yukon legislation is a “chattel real” and as such confers an interest in land. I discuss the difference between this type of grant, and the MTA, below.

[359]   As a corollary to that argument, the province submits that the decision in Ross River 2012 does not explain or assist in answering why a minor (“chattel”) grant of mineral rights would be sufficient to create an adverse impact. In other words: How is it that any grant of a proprietary interest in minerals, no matter how insubstantial, causes an adverse impact that risks undermining the Indigenous group’s future enjoyment of the benefits of Aboriginal title? On that basis, the province submits that the legal analysis in Ross River 2012 applies to a different legislative scheme. It does not apply to the factual and legislative matrix that exists in British Columbia.

[360]   On this point, the province submits that the third element of the Haida Test (adverse impact) was not the focus of the parties’ arguments in Ross River 2012. On appeal, the respondent Yukon only weakly contested that the threshold of adverse impact was not met. As Groberman J.A. noted at para. 34 of his reasons, “[t]he real issue that divide[d] the parties to this litigation [was] the question of whether the second element of the Haida test [was] engaged in this case.” Hence, the focus of the arguments in Ross River 2012 lay elsewhere. The focus was not on the third aspect of the Haida Test. The province submits that this explains the court’s sparse and cursory analysis of “adverse impact” at para. 32.

[361]   The province’s third position on Ross River 2012 and, specifically para. 32, is that it is dubious authority for the “shortcut” analysis on the third element of the Haida Test. Put another way, the province submits that the court relied on imprecise language from the Supreme Court of Canada in para. 122 of Delgamuukw.

[362]   The province makes the difficult submission that the statement in para. 122 of Delgamuukw that “aboriginal title also encompass mineral rights” is not good authority for the proposition that Aboriginal title, in fact, encompasses mineral rights. The province submits that, at para. 122 of Delgamuukw, Lamer C.J.C. conflated two concepts: the scope of title to reserve lands under the federal Indian Act and Aboriginal title.

[363]   The province submits that the cases cited by Lamer C.J.C. in para. 122 deal with reserve lands, not Aboriginal title. In support of this position, the province points to scholastic writing on this issue, including Canadian Law of Mining, 2nd ed. (Toronto: Lexis Nexus, 2020), where, at 129–130, Professor Barton explained the difficulties with Lamer C.J.C.’s reasoning in the cited paragraph of Delgamuukw as follows:

[364]   On these bases, the province submits that the Yukon Court of Appeal’s proposition at para. 32 of Ross River 2012 is dubious, specifically pointing to the statement, “Aboriginal title includes mineral rights (see Delgamuukw at para. 122).” The province submits that the reasoning in Ross River 2012 should be confined to the points that Groberman J.A. articulated in para. 33, addressing the significant scope of work authorized by the Yukon legislative scheme.

[365]   In summary, the province submits that the reasoning in para. 32 of Ross River 2012 proceeded along the following misguided line of reasoning:

[366]   Despite having taken the positions set out above, the province also acknowledges that, even if the jurisprudence on Aboriginal title and mineral rights has yet to crystallize, the trend is toward accepting the proposition that Aboriginal title includes mineral title. The province notes that Professor Barton states at 130 in Canadian Law of Mining:

[367]   The province further acknowledges that its own conduct has been consistent with the concept that Indigenous rights and title include the minerals in asserted territories. For example, following the 2014 decision of the Supreme Court of Canada in Tsilhqot’in (which granted Aboriginal title to the petitioner), the province made the administrative decision to close mineral claim registrations in Tsilhqot’in Nation’s Declared Title Area even though the issue of mineral ownership had not been finally determined.

[368]   The province submits that, as an alternative to the reasoning in Ross River 2012, a more applicable analysis is contained in Buffalo River Dene Nation v. Saskatchewan (Energy and Resources), 2015 SKCA 31 [Buffalo River].

[369]   In Buffalo River, the issue of adverse impact arose in relation to Saskatchewan’s auction of five-year exploration permits in respect of subsurface oil sands minerals located under Treaty 10 lands. The auction and subsequent issuance of the exploration permits occurred without consultation with Buffalo River Dene Nation whose members hold the right to practise traditional uses (e.g., hunting, trapping, and fishing) on Treaty 10 lands. The Saskatchewan Court of Appeal concluded that the initial posting and issuance of exploration permits in respect of Treaty 10 lands did not meet the threshold of an “adverse impact” required to trigger the duty to consult.

[370]      The province acknowledges that the factual underpinning and the Saskatchewan legislation does not overlap with British Columbia for several reasons:

[371]      Nevertheless, the province submits that on a proper analysis of the “adverse impact” question in relation to future enjoyment of Aboriginal title, the present case is not substantially different from Buffalo River. As such the present facts squarely engage the reasoning of the Saskatchewan Court of Appeal in that case.

[372]      In Buffalo River at para. 14, the court summarized the scheme as follows:

[373]   The Saskatchewan Court of Appeal concluded that the circumstances in Buffalo River did not constitute an adverse impact. The court held that the initial posting and issuance of exploration permits did not trigger the duty to consult, in part, because of the regulatory scheme and the Crown policy. The court held that the Crown’s first-stage decision to issue the exploration permits could not directly or indirectly impact the permit land or treaty rights under Treaty 10, absent further stages of decision making. As the court summarized in its conclusion at para. 88:

[374]   At paras. 91–92, the court elaborated:

[375]   The province submits that this analysis in Buffalo River offers an instructive counterpoint to Ross River 2012 and that this reasoning should apply to the analogous staged process under the MTA and the Mines Act.

[376]   The provincial respondents maintain that on a proper analysis of the adverse impact question in relation to future enjoyment of Aboriginal title, the present case is not substantially different from Buffalo River and as such squarely engages the reasoning of the Saskatchewan Court of Appeal in that case. Buffalo River is not, of course, binding authority. However, the province submits that, of the two appellate decisions, it provides the more persuasive analysis on the question of adverse impact under the British Columbia scheme than Ross River 2012.

[377]   Following on from its submission on Buffalo River, the province submits that the holder of a mineral claim receives only a “chattel interest” in the minerals. This discussion also illuminates the province’s prior submission regarding the difference between the MTA and the Yukon legislation which grants a “chattel interest, equivalent to a lease of the minerals.”

[378]   The MTA defines the right conferred with a mineral claim as a “chattel interest.” The province submits that, in the hierarchy of property interests, this type of interest falls into the category of personal property. It does not constitute real property or an interest in land.

[379]   The province notes that, in the past, a mineral claim has been considered to be akin to a profit à prendre. That term denotes an agreement that creates a right, privilege, or interest that allows a person to use the soil or products of another's property. The phrase can be translated to a “right to take.” Typical examples are licences to fish or hunt. The analogy between a mineral claim and a profit à prendre is applicable because a mineral claim allows the recorded holder to enter onto the Crown land and take any minerals thereon, subject to restrictions on the amount of work performed.

[380]   The traditional concept of a profit à prendre is considered to be an interest in land. To be clear, a mineral claim was not interpreted to be a profit a prendre. At most, a mineral claim has been said to be “similar to” a profit à prendre. A profit à prendre, as defined by Prof. Ziff (Principles of Property Law, 6th ed. (Toronto: Carswell, 2014),

[381]   The province submits that the evolution of the grants of mineral claims indicates the minor nature of the “chattel” interest:

[382]   On this point, the province notes the difference between the mineral tenure schemes of BC and Yukon. The Yukon legislation specifically grants a “chattel interest, equivalent to a lease of the minerals” and not simply a “chattel interest.” Hence, the province submits, Ross River 2012 deals with a regime that grants a greater interest to the miner.

[383]   The province submits that, as personal property, a mineral claim is less substantial than an interest in land. Mineral claims are capable of being recorded only in the Mineral Titles Online registry. Mineral claims granted under the MTA (apart from “Crown granted 2 post claims” issued before 1957, which are interests in land) cannot be registered in the land title office as encumbrances or charges against fee simple title.

[384]   The province likens the interest conferred with a mineral claim with a bare licence or authorization (e.g., like a commercial fishing licence). While not traditionally viewed as “property”, nevertheless it may constitute a major commercial asset that can be bought and sold and that as a matter of statutory interpretation must be assigned value in a bankruptcy.

[385]   The province notes that, to some extent, the petitioners’ submissions focus on s. 28(1) of the MTA which provides that:

[386]   The province submits that even if the recorded holder becomes “entitled” to the minerals upon registering the claim, s. 28(1) makes that entitlement “[s]ubject to this Act”. Those limitations include both the granting of only a “chattel interest” and s. 14(2) which prohibits any mining activity until the granting of a permit under the Mines Act.

[387]   Further, the province submits that, during the duration of a mineral claim, the minerals continue to be “held by the government” (unless they are removed by the recorded holder). In other words, minerals are not severed and granted to the recorded holder in situ at the time of registration of the mineral claim.

[388]   The province points to the distinction between the wording of s. 28(2) (mineral claims) and s. 48(2) which deals with the interest transferred upon obtaining a lease. Section 28(2) says that the leaseholder is “entitled to the minerals”. Section 48(2), which provides that a mining lease “conveys to the lessee the minerals … within and under the leasehold, together with the same rights that the lessee held as the recorded holder of the claim” (emphasis added). The province submits that this wording indicates that the entitlement under s. 28(2) must be something less than the conveyance that occurs under with the grant of a mining lease.

[389]   I have considered all of the province’s submissions on the “physical” impacts. For the reasons set out below, I do not accept them. To re-state, the petitioners submit that the granting of mineral claims results in an adverse physical impact by causing the following: (1) a loss of minerals; (2) a loss of mineral rights; (3) a loss of the ability to raise capital; and (4) a non-negligible disturbance to the claimed land.

[390]   First, I find that a loss of minerals (that is, the permanent removal of minerals from asserted territories) constitutes an adverse impact for the purpose of the Haida Test. The holder of a mineral claim, under the MTA, 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.

[391]   While I acknowledge that a mineral claim itself is temporary, the removal of minerals is not.

[392]   Second, turning to the loss of mineral rights, I agree with the reasoning found in Ross River 2012. In my opinion, that decision was properly decided. An overly narrow understanding of Aboriginal title, one that excludes the rights to subsurface minerals, is inconsistent with the goals of reconciliation and upholding the honour of the Crown. As the court stated in Ross River 2012, “The duty to consult exists to ensure that the Crown does not manage its resources in a manner that ignores Aboriginal claims”: para. 37. In this case, the petitioners assert rights to subsurface minerals. The honour of the Crown requires consultation prior to transferring away the rights to those minerals to third parties.

[393]   As noted, the province submits that the Saskatchewan case of Buffalo River, contains a better and more applicable legal analysis than Ross River 2012. However, in my opinion the analysis is less applicable. Critically, in the Saskatchewan case, the First Nation had not asserted any subsurface rights. As the court stated at para. 105:

[394]   I do not accept the province’s submission that there is no adverse impact because the interest the province transfers is only a “chattel” interest in the minerals. I fail to see how the categorization of the right as a chattel interest alters the analysis. The dispositive consideration, in my view, is that the petitioners are losing part of their asserted rights to the minerals.

[395]   Last, I turn to the province’s submissions regarding the limited nature of the physical disturbance that is authorized under a mineral claim. Again, this disturbance must be viewed from the perspective of the First Nation. In this regard, the province’s unilateral categorization of the disturbance as “nil or negligible” is unhelpful. Having regard to the perspective of the petitioners, in my view, 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.

[396]   In summary, I am not persuaded by any of the province’s submissions regarding the granting of mineral rights and its physical impact on the petitioners. I find that the grant of a mineral claim:

[397]   In my opinion, all of these examples constitute adverse physical impacts that should trigger the duty to consult.

[398]   On that basis, I find that the granting of mineral claims under the MTA results in adverse impacts on First Nations.

[399]   I noted near the outset of these reasons the tension between the specific allegations and relief sought by the petitioners, when positioned adjacent to the more general “declaratory” position that would apply to the entire province. I have also described, in general terms, two types of impact:

[400]   In my opinion, the former adverse impact (cultural and spiritual) is based upon the evidence adduced by the petitioners regarding their experiences in their own territories.

[401]   On the other hand, the latter adverse impacts arise generally from the operation of the MTA. Hence, in my opinion, this portion of my decision has broader application than the territories of the two petitioners. In that regard, I find that a duty to consult arises based upon the operation of the MTA.

[402]   Above, I have found that a duty to consult arises. It follows from that analysis that the province is in breach of its duty to consult with the petitioners.

[403]   The next question to address is the nature, or underlying cause, of the breach. The two possible sources of the breach can be described as follows:

[404]   As between the CGC and the LGIC, the two possibilities are described in the relief sought in the Gitxaala petition. Gitxaala seeks:

[405]   In my opinion, failure lies at the CGC level. As a result, I do not address the decision making at the LGIC level.

[406]   For the reasons set out below, I find that the MTA provided the necessary authority and discretion to the CGC to provide for pre-registration consultation. It follows that I find that the MTA is constitutionally valid legislation (or, not “constitutionally invalid” legislation).

[407]   The answer to the constitutional validity argument depends, in part, on whether the CGC had the authority or discretion within the MTA to institute a consultation process. Determining the breadth of the CGC’s discretion requires some degree of statutory interpretation.

[408]   The guiding rule of statutory interpretation remains the “unified textual, contextual and purposive approach” to find a meaning harmonious with the Act as a whole. That proposition is from Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, 1998 CanLII 837 [Rizzo Shoes], “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

[409]   However, there is now a statutory overlay that applies to statutory interpretation in British Columbia. Specifically, in 2021, the province amended the Interpretation Act, R.S.B.C. 1996, c. 238, to include s. 8.1 which provides:

[410]   The parties agree that subsection (3) requires that UNDRIP be considered when interpreting provincial Acts and regulations. In other words, the parties agree that, in this case, UNDRIP should be used as an interpretive aid when interpreting the MTA. However, the parties disagree about how UNDRIP is to be used.

[411]   The province submits that UNDRIP’s interpretive utility plays only a limited role in statutory interpretation. The province submits that the provisions of UNDRIP should be considered at the end of the interpretive exercise, simply as a means to support or confirm a particular interpretive result.

[412]   The petitioners disagree and submit that the Declaration should play a substantial role in the entirety of the interpretive process, and not a mere confirmatory role at the end. Specifically, the petitioners argue that interpretations consistent with the rights recognized by the Declaration should be preferred over those that are not.

[413]   The petitioners’ position is that s. 8.1 provides the court with an additional interpretive tool in circumstances where more than one interpretation may be possible. Section 8.1 provides that the court must interpret provincial laws in a manner that is consistent with s. 35 and UNDRIP. In other words, s. 8.1 acts as an interpretive aid during the entirety of the interpretive process, and not a mere “confirmatory” role at the end.

[414]   The province relies on the Supreme Court of Canada decision in Quebec v. 9147-0732 Quebec Inc., 2020 SCC 32 (“9147”) where the majority concluded that non-binding international instruments play the “limited role of providing support or confirmation for the result reached by way of purposive interpretation.” In this case, the province argues that the Declaration’s role as an interpretive aid should be limited in the same manner.

[415]   In my view, the issue in the present case can be distinguished from the issue before the Court in 9147. Here, the issue is the effect of a specific statutory provision which requires consideration of a specific international instrument in interpreting provincial legislation. In 9147, the Court was concerned with the interpretive relevance of international instruments more generally. In that case, the Court was considering only the common law (Rizzo Shoes) approach. In contrast, I am addressing a situation wherein applicable legislation (s .8.1 of the Interpretation Act) expressly requires me to consider an international instrument as part of the interpretive process.

[416]   In my opinion, the purpose of s. 8.1 is clear and evident in the text of the section. That is: when I consider the proper interpretation of the MTA, I should apply the Rizzo Shoes analysis. However, within that analysis, I am 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 am to construe the Act in a manner that is consistent with UNDRIP (i.e., that protects Indigenous rights).

[417]   It follows that I do not accept the province’s submission that the process outlined in s. 8.1 should be undertaken after the Rizzo Shoes analysis. In this regard, s. 8.1 is best described as overlaying the interpretive process. In my opinion, that is the proper description, and it denotes the proper approach. Section 8.1 is not a trailer that is attached to the back-end of the process. Instead, it is an umbrella that covers the entirety of the process.

[418]   In my opinion, the application of s. 8.1 in this case does no more, and no less, than provide that overlay. Hence, when I assess whether the MTA is constitutionally valid, I must construe it in a manner that upholds the Aboriginal rights enshrined in s. 35 and set out in UNDRIP. As I describe below, the logical extension of that overlay is that I find the legislation to be valid. To jump ahead for a moment, in short, I find that where there is a question in the interpretation of the MTA regarding the breadth of the CGC’s authority, I construe that issue liberally, such that the legislation upholds Indigenous rights. The logical end-point of that analysis (when combined with the text, context, and purpose) is that the CGC has been improperly implementing the MTA by not providing for pre-registration consultation.

[419]   As noted above, the question here is whether the MTA provides authority to institute a pre-registration consultation process.

[420]   The province’s (and the CGC’s) position is that the CGC does not have the discretion to implement this type of process. I find that a proper interpretation of the MTA (keeping s. 8.1 of the Interpretation Act in mind) leads to the conclusion that the CGC does, in fact, have such authority and discretion.

[421]   Before addressing the petitioners’ submissions regarding statutory provisions and CGC discretion, I outline certain baseline propositions and evidence from the CGC that inform my decision:

[422]   While this evidence does not establish that the CGC has the discretion to establish pre-registration consultation, it does provide some evidence of the scope of the CGC’s discretion.

[423]   The petitioners submit that, while parts of the MTA contain mandatory language, the Act provides broad discretion to the CGC with respect to whether and how mineral claims are granted. For example, s. 6.2(1) requires the CGC to “establish and maintain a mineral titles online registry for the purposes of registrations respecting claims.” However, the CGC retains specific discretionary powers by which registrations may be controlled:

[424]   The petitioners also point to other provisions that empower the CGC to implement consultation requirements in areas he may delineate by regulation. I need not address them here.

[425]   Again, the province’s position is that the free entry mineral tenure system allows persons interested in exploring for minerals to “stake” mineral claims through a non-discretionary administrative process.

[426]   In my opinion, and with the greatest respect, the province’s position misses the point. Under the auspices of the MTA (and predecessor legislation), the CGC established the mineral tenure system. The manner of registration of mineral claims, pursuant to that system, is “automatic.” However, it is only “automatic” because it was designed that way by the CGC. I accept the petitioners’ submissions regarding the discretion that is granted to the CGC, especially under ss. 6.2, 17, and 22. I accept that those provisions provide the CGC with the discretion to change the requirements of registration and allow the CGC to restrict the use of certain lands.

[427]   With respect to the CGC’s position that it does not have discretion to consult with Indigenous groups, in my opinion, that is simply wrong. Section 17 gives the “the Minister” the power to restrict the use of surface rights in areas of cultural significance to Aboriginal people. It stands to reason that the CGC could only learn of the existence of those areas of cultural significance through consultation.

[428]   In interpreting the MTA in accordance with the Rizzo Shoes test, including the overlay of s. 8.1 of the Interpretation Act, I find that the MTA does provide the CGC with the necessary discretion to institute some form of consultation prior to registration of mineral claims. In particular:

[429]   Finally, on this issue, I note that in Ross River 2012, the Yukon Court of Appeal held that, although amendment to legislation “may” be required, it is sufficient for a plaintiff to show that the statute contains discretionary power that the CGC could use to discharge its duty to consult regarding mineral claims. The means of bringing the system into compliance are not for the court’s meddling. I note these two paragraphs:

[430]   On that basis, I find:

[431]   The result of a finding that the CGC breached the duty to consult is that the petitioners are entitled to a remedy or remedies. I discuss those remedies below.

[432]   Having made the findings above relating to the Haida Test, s. 35, and the duty to consult, I now proceed to the second half of the petitioners’ argument. The petitioners seek a declaration that the current process for granting mineral titles under the MTA is inconsistent with UNDRIP.

[433]   I set out my analysis on the proper interpretation of DRIPA below. In the end, I find that DRIPA does not implement UNDRIP into the domestic law of the province. Further, I find that, properly interpreted, s. 3 of DRIPA does not create justiciable rights as proposed by the petitioners.

[434]   I am aware that there is significant interest in this issue and, so far, very little judicial comment. As noted by Justice Kent in Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc., 2022 BCSC 15:

[435]   Justice Kent went on to note that a higher court will ultimately determine the effect of DRIPA. I am cognizant that these reasons may represent the first in a long progression of judicial considerations of UNDRIP and DRIPA.

[436]   The General Assembly of the United Nations adopted UNDRIP on September 13, 2007. The Declaration is a comprehensive delineation of the individual and collective rights of Indigenous peoples. The rights it recognizes include the right to self-governance, the right to practice and maintain cultural, political and legal traditions, the right to land ownership, and many others rights. UNDRIP makes clear the urgency in enshrining and respecting these rights; they constitute “minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world”: Article 43.

[437]   In May 2016, Canada announced its formal endorsement of UNDRIP. To be clear, an “endorsement” does not constitute “implementation.” The Declaration is a non-binding international instrument. Thus, the endorsement did not result in an immediate change to the domestic laws of Canada. As noted by Justice L.F. Gower in Ross River Dena Council v. Canada, 2017 YKSC 59 at para. 302:

[438]   I also note the comments of Hinkson C.J., in Snuneymuxw First Nation v. Board of Education – School District #68, 2014 BCSC 1173 at para. 59 (which was decided prior to Canada’s endorsement in 2016):

[439]   Again, the two decisions referenced above must be read in the context that they pre-date November 2019 when BC brought into force DRIPA. There are three aspects of DRIPA worthy of highlight in this case:

[440]   In enacting DRIPA, British Columbia became the first province in Canada to enact legislation in relation to UNDRIP. Similar legislation was enacted by the federal government in June 2021.

[441]   On November 25, 2021, British Columbia passed Bill 29, the Interpretation Amendment Act, 2021. Bill 29 added s. 8.1 to the Interpretation Act which, among other things, requires that every provincial enactment be construed in a manner consistent with UNDRIP.

[442]   I addressed above the implications of s. 8.1 of the Interpretation Act. The remaining two issues to be decided concerning the effect of both DRIPA and UNDRIP are:

[443]   I deal with each issue in order below.

[444]   As noted above, a non-binding international instrument endorsed by the executive branch of government does not become a binding source of domestic Canadian law until implemented through legislation: Baker v. Canada, 1999 SCC 699 at para. 69.

[445]   In Nevsun Resources Ltd. v. Araya, 2020 SCC 5, the Court explained the rationale for this rule in the context of discussing international treaties:

[446]   The use of the word “implementing” is important. Further, legislation “implementing” an international instrument into domestic law must do so expressly. As stated by Laskin C.J. in MacDonald et al. v. Vapor Canada Ltd., [1977] 2 S.C.R. 134 at 171, 1976 CanLII 181, mere general approval of an international instrument is not sufficient and must “not be left to inference”:

[447]   On the “implementation” question described above, I note that both petitioners agree with the province’s position that UNDRIP has not been “implemented.”

[448]   However, the intervenor BCHRC takes the position that DRIPA does, in fact, implement UNDRIP. To be clear, that position exceeds the position taken by the petitioners and the province. However, I find it necessary to address it in full.

[449]   The BCHRC submits that by “affirm[ing] the application of [UNDRIP] to the laws of British Columbia”, s. 2(a) of DRIPA “implemented” UNDRIP into domestic law.

[450]   I pause here to note my understanding of the BCHRC’s use of the word “implemented”. Implementation is the means by which an international instrument becomes part of domestic law: Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022) at p. 567. Accordingly, an international instrument that has been “implemented” has the same legal effect as a provincial or federal enactment. It can create rights for citizens, impose obligations on the government, and create causes of action. In this regard, when the BCHRC argues that the Declaration has been “implemented”, I understand that submission to mean that the Declaration now has the full force and effect of law in British Columbia.

[451]   As noted, the province disagrees with that position and submits that the language used in s. 2(a) falls short of the direct and explicit language required from the legislature to implement an international instrument. The two petitioners agree with the province’s position on whether “implementation” has occurred. However, to be clear, the position of Gitxaala and the province diverge regarding the impacts of the enactment of DRIPA and s. 8.1 of the Interpretation Act. I discuss in Gitxaala’s position on the impact of these two enactments below.

[452]   Turning back to the submission of the BCHRC, it is clear that determining the effect of s. 2(a) of DRIPA involves an exercise of statutory interpretation. As discussed above, the modern approach to statutory interpretation requires consideration of the text, purpose and context of a statute: Rizzo Shoes at para. 21. The goal is to ascertain an interpretation that finds harmony between the words of the statute, its intended objective, and the context in which it was enacted: MediaQMI Inc. v. Kamel, 2021 SCC 23 at para. 37.

[453]   In advancing their proposed interpretations, the parties each point to statements made during legislative debate (Hansard evidence). While such statements can assist in illuminating the purpose of legislation and serve as evidence of legislative intent, they should not be relied on without qualification: Canadian National Railway v. Canada (Attorney General), 2014 SCC 40 at para. 47. In this regard, I am mindful of the limited reliability of Hansard evidence, given that the relevant consideration is the intent of the legislature, not the intent of its individual members: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para. 68.

[454]   The BCHRC focusses on s. 2(a) to ground the assertion that UNDRIP has been implemented. Accordingly, the focus of my analysis will be on the effect of that particular provision.

[455]   To interpret s. 2(a), it is necessary from the outset to properly characterize the provision itself. In full, s. 2 reads:

[456]   Thus, s. 2 sets out the “purposes” of the DRIPA.

[457]   In The Construction of Statutes, Ruth Sullivan, at 446, describes such provisions as “purpose statements” which are not substantive provisions that create rights or impose obligations. Instead, they are interpretive provisions that give meaning to and assist in understanding the substantive provisions in legislation. As Sullivan explains at 446:

[458]   The British Columbia Court of Appeal applied this approach in Greater Vancouver (Regional District) v. British Columbia, 2011 BCCA 345. In that case, the appellant argued that a statement of principles in s. 3(c) of the Local Government Act, R.S.B.C. 1996, c. 323, imposed binding obligations on the provincial legislature. The relevant portion of s. 3(c) stated that the relationship between regional districts and the provincial government is based on principles that included the phrase “notice and consultation is needed for Provincial government actions that directly affect regional district interests”.

[459]   The Court of Appeal found that s. 3(c) was not itself a substantive provision in the legislation, likening it to the type of statement found in a preamble. The Court of Appeal confirmed that s. 3(c) “create[d] no legally enforceable obligation on the part of the Province”: at para. 45. Justice Newbury then provided her opinion on the inclusion of aspirational goals in statutes at para. 47:

[460]   DRIPA does not contain a preamble. Its objectives and purposes are only set out in s. 2. Furthermore, in my opinion, the enumerated purposes are stated broadly and lack the clear and precise language found within the other provisions of the Act.

[461]   Hence, the text leads me to conclude that s. 2 was not intended to be a rights-creating, substantive provision. Instead, s. 2 simply contains statements of purpose to be used for interpreting the substantive provisions of the legislation.

[462]   The BCHRC submits that s. 2(a) of DRIPA implemented the Declaration such that it now has the full force and effect of law in British Columbia. To be clear, if correct, this would be a substantive outcome of great significance. In that context, I am unable to conclude that the legislature, having used broad and imprecise language, intended that the statement of purpose in s. 2(a) would effect such a significant outcome.

[463]   On that front, I consider that other provincial legislation implementing international instruments provides useful points of comparison. For example, both the International Sale of Goods Act, R.S.B.C. 1996, c. 236 [ISGA], and the Foreign Arbitral Awards Act, R.S.B.C. 1996, c. 154 [FAA], implement international instruments into British Columbia law. Notably, neither Act employs a broad statement of purposes or principles to achieve the implementation. For example, the FAA achieves implementation of a United Nations convention by simply stating (in s. 2), “The Convention applies in British Columbia” (see also: ISGA, s. 2).

[464]   A purposive analysis further supports the conclusion that s. 2 did not implement UNDRIP into domestic law. Section 2(b) provides that the purpose of DRIPA includes “to contribute to the implementation” of UNDRIP. The inclusion of the phrase “contribute to” in s. 2(b) strongly indicates that s. 2(a) did not, in fact, accomplish “implementation” as the BCHRC suggests.  

[465]   This purpose is also reflected in ss. 4–5 of DRIPA, which place prospective obligations upon the government to achieve alignment between the laws of British Columbia and the Declaration. For instance, s. 4 requires the government to create an action plan for legislative reform and to consult with Indigenous peoples in the process. In this way, DRIPA contemplates and acknowledges that there is (current) misalignment between the laws of British Columbia and the Declaration. It also puts steps in place to resolve those inconsistencies. I return to this point below when discussing “Justiciability.”

[466]   On the basis of the analysis above, I find that a correct, purposive interpretation of DRIPA does not lead to the conclusion that DRIPA “implemented” UNDRIP into domestic law. Instead, DRIPA contemplates a process wherein the province, “in consultation and cooperation with the Indigenous peoples in British Columbia” will prepare, and then carry out, an action plan to address the objectives of UNDRIP.

[467]   Turning to the “context”, as noted, the province points to comments during the legislative debates by the Honourable Scott Fraser, the Minister of Indigenous Relations and Reconciliation. He stated that DRIPA would “not, in and of itself, give the UN declaration legal force and effect.” He further asserted that “[b]ringing laws into alignment with the UN declaration won’t happen overnight. It will be generational work.”

[468]   For its part, the BCHRC argues that DRIPA is human rights legislation and, therefore, should be interpreted broadly and liberally and notes the following from Honourable Scott Fraser’s address to the Legislature:

[469]   I acknowledge the human rights character of the legislation and the need to interpret such legislation expansively. Furthermore, I am mindful that s. 8.1(3) of the Interpretation Act requires that I interpret provincial enactments in a manner consistent with the standards set out UNDRIP. However, I find that these factors do not overcome the fact that s. 2(a) is a broad statement of purpose that cannot, on its own, produce substantive outcomes.

[470]   In sum, s. 2(a) of DRIPA does not implement UNDRIP into the domestic law of British Columbia. This interpretation is consistent with the characterization of s. 2(a) as a purpose statement as well as the legislation’s purpose and context. As such, UNDRIP remains a non-binding international instrument.

[471]   The next question is whether DRIPA, and in particular s. 3, creates justiciable rights. Again, the proper analysis of this question requires that I address the “text, context and purpose” of the Act. Further, according to s. 8.1(3) of the Interpretation Act, I am to interpret DRIPA with the overlay that it is consistent with UNDRIP.

[472]   As noted, s. 3 of DRIPA provides:

[473]   Justiciability is a question about whether the courts have the institutional capacity and authority to resolve a particular dispute. It is predominantly a question about subject matter. Specifically, an inquiry into justiciability asks whether the subject matter of a dispute is one suitable for judicial intervention.

[474]   Resolving issues of justiciability involves considering questions of significant importance to Canada’s constitutional democracy, including normative questions regarding the proper scope of judicial authority; constitutional questions regarding the relationship between the judiciary and other branches of government; and more general questions about the capacity of courts and judicial decision makers: Lorne M. Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, 2d ed. (Toronto: Carswell, 2012) at 6–7.

[475]   The overarching goal is to ensure that the court remains within the confines of its proper constitutional role: Reference re Canada Assistance Plan, 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525 at para. 33.

[476]   In discussing how to determine whether an issue is justiciable, the Supreme Court of Canada stated the following in Highwood Congregation v. Wall, 2018 SCC 26:

[477]   I discuss the positions of the parties below.

[478]   The petitioners argue that s. 3 imposes on the government a duty that is engaged in the event the laws of British Columbia are found to be inconsistent with the Declaration. Whether there is inconsistency, the petitioners argue, is a justiciable question. If a court finds that the laws of British Columbia are inconsistent with UNDRIP, then the petitioners submit that the court should declare that the government must take all measures necessary to remedy that inconsistency.

[479]   The petitioners submit that s. 3 addresses all situations where “the laws of British Columbia” are inconsistent with UNDRIP for whatever reason. They submit that s.3 involves three features: