BC Land Act changes could grant Indigenous control over mining leases

British Columbia’s Ministry of Water, Land and Resource Stewardship is contemplating changes to the way land use decisions are made in the province — and it could have a big impact on the resource sector.

Earlier this month, the ministry quietly posted on its website a Land Act legislative amendment to consult with Indigenous governing bodies to share decision-making about public land use. 

The amendment is in line with the 2019 Declaration on the Rights of Indigenous Peoples Act (DRIPA), the provincial framework for reconciliation with Indigenous peoples.

But changes to the way land use decisions are made could have big implications for the province’s mining and resource sectors, says law firm McMillan.  

“Make no mistake — the subject matter of the consultation is unprecedented and of profound importance to any company that requires authorization to use Crown land in B.C.,” the firm stated in a release published on Friday. “These include things like grazing leases, mining leases, licences of occupation, [and] dock permits.” 

These decisions have historically been made by the minister responsible for the Land Act (or her or his delegates in the senior ranks of the public service), with a corresponding duty to consult affected First Nations, McMillan noted. 

Under the proposed amendments, Indigenous groups could gain veto power over decision-making about Crown land tenures and/or have joint decision making power with the minister.  

As such, the Crown alone would no longer have the power to make decisions about Crown land that it considers to be in the public interest.

The amendment posting comes just four months after the B.C. Supreme Court ordered the province to update provincial mining legislation to ensure First Nations are consulted before any staking of mineral claims.  The court ruled that the existing online free-entry system, which doesn’t include a consultation framework, violates the Crown’s constitutional obligations.

However, many in the mining industry argue that consulting with third parties before staking claims risks proponents losing their intellectual property before the claim is secure, as Kendra Johnston, former president and CEO of the B.C.-based Association for Mineral Exploration (AME) explained at the AME Roundup last year.

The AME’s current president and CEO Keerit Jutla, says the organization seeks to ensure the claim staking process is both competitive for industry and respectful of Indigenous peoples. 

Public engagement is open until Mar. 31, 2024 here.