Court ruling upends B.C. mineral rights

British Columbia’s mining industry faces upheaval from a court ruling affirming Indigenous rights while in a separate move two Interior First Nations want to halt the province’s fast-tracked approval process for a major mine expansion by Hudbay Minerals (TSX: HBM; NYSE: HBM).

Hudbay said it remains committed to working closely with both communities on the provincial government’s accelerated timeline for the New Ingerbelle project at Copper Mountain. The Upper and Lower Similkameen Indian Bands have triggered the dispute-resolution process under B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) to suspend the process. They contend key information is missing and consultation is being rushed.

“The Jan. 15 timeline is a slap in the face,” Chief Keith Crow of the Lower Similkameen Indian Band said in a release this month. “With the right commitments, and meaningful effort from B.C., our communities could possibly see a joint consensus on New Ingerbelle by April or May.”

The dispute comes as the province’s mineral rights system is being reshaped by a precedent-setting B.C. Court of Appeal ruling this month that found DRIPA incorporates the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and creates legally enforceable obligations. It is the first time an appellate court in Canada has ruled on DRIPA’s force in domestic law and it has major implications for operators and developers across the province.

Impacted projects

Potentially affected companies include Teck Resources (TSX: TECK.A/TECK.B; NYSE: TECK) in the Elk Valley, Newmont (TSX: NGT; NYSE: NEM) at Brucejack, and Skeena Resources (TSX: SKE; NYSE: SKE) as it seeks approvals for reopening Eskay Creek. There are also Artemis Gold (TSXV: ARTG) at Blackwater, Ascot Resources (TSX: AOT) at Premier and Taseko Mines (TSX: TKO; NYSE-AM: TGB) at Gibraltar.

All rely on provincial tenure and permitting systems that must now align with the heightened consultation standards clarified by the Court of Appeal.

At Copper Mountain, which Hudbay bought in 2023, the company wants to extend mining to within 50 metres of the Similkameen River – and below the river level – while raising existing tailings dams and constructing a new bridge. The First Nations say the environmental and cultural risks require a slower, consensus-based review.

“Key information required in the application is still being received, and B.C. is already drafting decisions,” Chief Crow said.

Consistency

At the B.C. Court of Appeal, the majority held that all B.C. laws and regulations must now be interpreted consistently with UNDRIP, and that B.C.’s automatic online mineral claim system is inconsistent with those standards because it provides no opportunity for consultation.

The B.C. Association for Mineral Exploration is reviewing the decision and the likelihood of future appeals and will “carefully consider our approach,” CEO Todd Stone said in a statement.

The Independent Contractors and Businesses Association warned the ruling could have broad consequences for permitting. The decision makes DRIPA “hard law with sweeping consequences for every statute, regulation, permit and project in this province.”

Amendments?

Premier David Eby acknowledged amendments to DRIPA may be needed.

“It is absolutely crucial that it is British Columbians, through their elected representatives, that remain in control of this process, not the courts,” he said.

The court decision arose from a challenge by the Gitxaała and Ehattesaht First Nations over claims staked between 2018 and 2020 on Banks Island, about 700 km northwest of Vancouver, off the province’s North Coast near Prince Rupert.

“This is an exciting victory not only for Gitxaała but for all Nations,” Gitxaała Chief Councillor Linda Innes said Dec. 5. “We have said all along that BC’s out-of-date, colonial mineral tenure regime violates Canada’s own laws, the UN Declaration on the Rights of Indigenous Peoples and our Gitxaała laws. Now B.C.’s highest court has agreed.”

With files from Amanda Stutt and Joseph Quesnel