A First Nations challenge of British Columbia's nonrestrictive system for staking claims could upend the process of prospecting for new minerals in the Canadian province.

Gitxaala Nation says British Columbia should recognize Indigenous jurisdiction in how mineral rights are issued. The case will be heard in the provincial Supreme Court in April amid broader negotiations between the province and Indigenous peoples over land rights and governance issues.

The legal challenge, initiated in 2021, argues that the claim-staking system violates the First Nations' right to consultation under the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, which is recognized both under British Columbia law and through other Canadian court decisions.

Exploration in British Columbia is big business: The province drew $534.8 million, or 4.1%, of global exploration budgets in 2022, according to S&P Global Market Intelligence data. Mineral explorers stake claims through an online system without first having to consult with First Nations, in whose traditional territory they might be prospecting. After mineral claims are issued, explorers may undertake lighter fieldwork without permission; more intrusive exploration, such as drilling, requires permits and consultation.

"It has to be a revised system, because there's completely no engagement with First Nations," said Terry Teegee, regional chief of the British Columbia Assembly of First Nations, which represents and advocates for the province's First Nations. "Somebody with a credit card, can state, 'Hey, I'm going to explore this area without any engagement with First Nations.'"

Consultations before staking

Mineral explorers say that a court decision adding First Nations rights to consultation before mineral rights are issued could complicate their claim-staking process. Gitxaala Nation, however, argues that granting claims automatically through an online platform breaches a constitutional duty to consult and accommodate First Nations.

First Nations in British Columbia, including the Gitxaala, say the province's free-entry system ignores legal rights in issuing claims without prior consent and consultation.

In part, the legal basis for this case stems from British Columbia's 2019 legislated recognition of UNDRIP. Canada recognized UNDRIP in 2020 legislation, committing to ensure that federal laws align with the declaration.

The current system — typical of many Canadian jurisdictions, where mineral rights are largely under the authority of provincial governments — allows companies and prospectors to easily stake claims on open ground without first seeking permission.

Canada accounted for 20.6%, or $2.68 billion, of global nonferrous exploration budgets in 2022, much of which targeted British Columbia, according to Market Intelligence data.

Explorers worried

Companies have argued that the system's permission-less nature is key to ensuring rivals are not tipped off about staking plans as companies and prospectors leverage exploration know-how and cash in a bid to make discoveries.

"It is challenging as an exploration company ... to do consultation before you stake claims," said Diane S. Nicolson, CEO, President & Director of Amarc Resources Ltd., a British Columbia-focused exploration company.

The British Columbia-based Association for Mineral Exploration, or AME, and the Prospectors & Developers Association of Canada represent the interests of exploration companies. The two groups intervened in the case, receiving court approval to do so in January.

"We have intervened to ensure the court understands the impact any change to the mineral claim-staking process will have on the mineral exploration and mining industry, not only here in British Columbia, but across the country and in other jurisdictions with similar systems," Jonathan Buchanan, vice president of policy and advocacy at AME, said in an email.

A spokesperson for the provincial government declined to comment on the case.

Alternatives in play

Although British Columbia's explorers face uncertainty over the mineral-staking system, the province is well placed to devise a new process, according to Nicolson. The CEO said that British Columbia was the first province to recognize UNDRIP and, along with industry, created revenue-sharing agreements with First Nations in recent decades.

"We have to apply some very creative thinking, similar to that, into how we can actually make some of these things work," Nicolson said. "Maybe there are other mechanisms that ... will come out of good collaborative and inclusive discussions."

Teegee said that the shape of a future alternative staking procedure that incorporates more First Nations consultation and consent is up for negotiation. But the current situation is untenable.

"There needs to be some sort of system where, perhaps even before engagement with government, whoever is exploring an area engages with First Nations," Teegee said. "I wouldn't enter a territory without acknowledgment, especially in regards to a project that is very intrusive. I mean, the legacy and the development of a mine is quite profound ... depending on the size of it, right?"

Gavin Smith, a lawyer with West Coast Environmental Law, which represents the Gitxaala First Nation in the case, said an alternative system might include a way to maintain a "first in line" rule for explorers. This might protect an explorer's ability to move relatively freely in staking out potential ground for a new exploration project.

"Whatever specific regime comes out the other end, the ... most important underlying piece is recognizing Indigenous nations as [having] jurisdiction," Smith said.

Change is coming

Even if the Gitxaala lose the case, British Columbia's exploration laws might be headed for change. After recognizing UNDRIP, British Columbia committed last year to a broader strategy of negotiating with First Nations over land title, management and rights. Among promises, the province said it would revamp the Mineral Tenure Act, which governs British Columbia's exploration sector, in consultation with First Nations.

Speaking at a recent exploration conference in Vancouver, British Columbia Premier David Eby said the province faces "a very serious legal challenge" to the act and that resolving it would mean engaging with industry and First Nations.

"It's both a very exciting time in our province and it's a bit nerve-wracking too," Eby said Jan. 23 at the Association for Mineral Exploration Roundup. "We're moving into an unknown future together with First Nations."

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