Province hits brakes on Heritage Conservation Act legislation
B.C.’s independent miners and prospectors gather in Vancouver at the end of January for their annual convention, and it’s shaping up to be a grim affair as uncertainty grows over the impact of indigenous land rights on their business.
It’s been nearly a year since the B.C. government accepted a trial court ruling in the Gitxaala case and scrapped the province’s historical “free miner” policy that allowed prospectors to confidentially explore and file mineral exploration claims. Free miners were originally empowered in medieval Europe so they could find metals and minerals without getting permission from every lord of every valley bottom. The concept was hastily put in place in pre-confederation B.C. in response to the first wave of American prospectors seeking gold in the Fraser Valley.
Nowadays, prospectors are required to consult with those who assert aboriginal rights and title to the area, which in many parts of B.C. can mean multiple overlapping land claims or losing out on exploration opportunities to wealthier competition that can offer lucrative incentives to title holders.
But that’s not the only bad news for the mining and prospecting industry.
Mineral exploration claims dropped following new consultation rules
The B.C. mines ministry finally released its review of the first six months, and the results are as predicted.
New mineral exploration claims are down 29 per cent from the average of the past seven years. The total mineral claim area applied for or registered is down 60 per cent since B.C.’s new mineral claims consultation framework took effect.
“The Mineral Claims Consultation Framework is currently not functioning well and lacks the confidence of the industry,” the Association for Mineral Exploration B.C. said in a Jan. 12 statement on the results. “While it remains early, it’s clear that mineral explorers are apprehensive about using the system.”
The ministry promised not only six-month updates but a service delivery target of 90 to 120 days for permit applications. In the first six months, permit applications took an average of 127 days, and the association says delays have increased even more since August.
Part of the reduction in prospecting is from a year-long exploration ban imposed last summer in the area known as the Golden Triangle in northwest B.C. Located between Stewart, Dease Lake and the Alaska panhandle, it’s the region where the most recent of B.C.’s gold, silver and copper mines are established. This mineral zone contains an estimated 70 per cent of Canada’s known copper reserves.
Despite the ban, private “nation-to-nation” land use planning continues between the B.C. government and Indigenous groups asserting title to land. In the Golden Triangle and the surrounding north, that includes several aboriginal groups, dominated by the Tahltan and Kaska Dene whose two combined asserted territories account for about 20 per cent of the province’s total land mass.
Government doesn’t challenge title claims or vetos
An emerging pattern in B.C. indicates governments are simply acceding to aboriginal title claims rather than overruling or challenging them in court. Just as when Prime Minister Mark Carney met with the Coastal First Nations-Great Bear Initiative this month. An environmental coalition that first gained life under theDavid Suzuki Foundation in the late 1990s, the coalition purports to represent west coast First Nations writ large, despite reportedly having ties to only eight of the 72 Indigenous groups with reserve land on the west coast.
Yet in the coalition’s meeting with Carney, the group reasserted its veto over tankers loading Canadian oil on the North Coast. And Carney didn’t argue.
The provincial government is enabling similar situations in the mining exploration sector.
The Tsilhqot’in Nation succeeded in barring Taseko Mines from developing its New Prosperity property southwest of Williams Lake, despite the land being located outside the Tsilhqot’in title area. And Indigenous governments are increasingly issuing vetos against development and relying on the terms of B.C.’s unique Declaration of the Rights of Indigenous Peoples Act (DRIPA) as justification.
In November 2023, Taranis Resources petitioned the BC Supreme Court to press the province to make a permitting decision after more than a year of delay. “We believe the government is unwilling to do its legal duty (to grant the permit) because of First Nation pressure,” the company’s CEO said at the time.
In an unusual move, Taranis also asked the court “to declare that Mines Minister Josie Osborne’s statement that First Nations are ‘the rightful owners of the land,’ and her reference to a ‘Ktunaxa-declared moratorium’ are contrary to law,” according to a Vancouver Sun report. Instead, in March 2024, after “a lengthy 573-day government review period,” the ministry issued the permit. In response, Taranis withdrew the company’s petition.
Osborne has since been moved to the health portfolio, and Surrey MLA Jagrup Brar took over as minister of Mines and Critical Minerals.
Permitting not based on merit, lawsuit alleges
Warren Mirko is founder and executive director of the Public Land Use Society. He started the society a year ago in response to the shrinking access to B.C.’s Crown lands for recreation and industry. His “day job” is with an international diamond drilling company, where he sees the political and legal walls closing in on independent prospectors using hammers and drills to assess metal deposits.
Mirko wrote about Torr Metals’ unsuccessful attempt to obtain approval to conduct copper and gold exploration drilling in the face of a de facto veto by the Tahltan Central Government.
Torr Metals filed a petition with the B.C. Supreme Court in July 2024, alleging the province’s statutory decision-maker for permitting, “impermissibly delegated her decision-making authority” to the Tahltan or alternatively, “impermissibly fettered her discretion” because she was not prepared to approve the notice of work application “on any terms” if the Tahltan did not support the permit, “regardless of the merits.”
The lawsuit also alleges the province improperly accepted an area as a “cultural heritage resource,” and failed to balance the interests of aboriginal and non-aboriginal interests, Torr’s petition stated.
Mirko has also written about the struggles of Skeena Resources in developing the Eskay Creek mine in the province’s northwest while navigating the veto powers of the Tahltan. Enabled under DRIPA’s “consent decision-making” provisions, the “Declaration Act Consent Decision-Making Agreement” between the B.C. government and the Tahltan Central Government, was signed by two cabinet ministers, then-premier the late John Horgan, and the Tahltan president.
“The consent of [Tahltan Central Government], provided in accordance with this Agreement, is required for the Project to proceed within the Consent Area,” states the consent agreement.
In separate negotiations, and to obtain consent from the Tahltan community to reopen the Eskay Creek gold mine, Skeena Resources issued the Indigenous government a $40 million up-front payment, to be dispersed in $10,000 payments to each Tahltan member before they voted on whether to accept the deal with Skeena Resources or not. As well, according to Business in Vancouver, the company reported it will pay the Tahltan an additional $1.2 billion in cash and $570 million in contracts and wages over the mine’s operation.
Mirko says this and other big-money arrangements price out all but the largest mining companies from trying to compete in B.C.
‘Our smallest members are the hardest hit’
Association for Mineral Exploration CEO, Todd Stone, shared Mirko’s concern.
“Many of our smallest members are hit the hardest and are seeing their way of life disappear. Reconciliation cannot work when only a few bare the gains,” Stone said in a letter to B.C. Premier David Eby dated Jan. 13.
“Decision making has been slowed as governments moved away from their Section 35 obligations toward consent seeking decision making on even small permits. The result has been increased delay and confusion.”
The mining exploration organization initially supported DRIPA thinking “it would provide clear, transparent and timely project review processes to attract the capital needed to develop our natural resources for the benefit of all British Columbians,” Stone said, but the consequences have been negative. Stone is a former BC Liberal cabinet minister, who was serving in the Opposition when DRIPA was unanimously passed into law in 2019.
“Missing in your comments and in the current legislation is the concept of public interest and engagement with affected rights holders,” wrote Stone to the premier.
Stone recommended three deletions to the Interpretation Act and DRIPA to remove the legal obligation to align B.C. laws with DRIPA, and an additional amendment that considers “the public interest and compensation measures for directly affected public.”
‘Spirit bathing’ and other intangibles
Another key concern for the mineral exploration sector is the NDP government’s plan to amend the Heritage Conservation Act. Among other changes, the government proposals would expand protected areas to include “intangible cultural heritage sites” that would be kept secret from the public and confer more decision-making to Indigenous bodies. The NDP has also moved to create a province-wide non-disclosure system to allow local governments to learn where culturally off-limits areas are, as long as they don’t tell the public.
This week, Forests Minister Ravi Parmar announced government will postpone the proposed changes it promised to turn into legislation this spring. “This decision reflects the need to continue engagement to gather and incorporate feedback from industry, local governments and First Nations,” the ministry said in a statement.
The government faced fierce blowback from municipal governments last fall after it reached consensus with an elite group of Indigenous leaders on a range of dramatic changes to the act before making them public. Since then, the critics have piled on.
If government calls for a pause without stopping First Nations from applying the changes on the ground, the freeze on legislation will be immaterial for those British Columbians stuck with long delays, cumbersome processes and big bills. Because before the government was even finished consulting on the Heritage Conservation Act proposals, let alone had made them law, the changes were already being applied by some aboriginal governments and enabled by the province with exceptionally negative results.
Some aspects of the changes in particular may be vulnerable to abuse. Torr Metals cited what it considered an improperly designated a heritage site, and Mirko says he recently saw a B.C. government work permit issued to a mining company that included a new “intangible cultural heritage” condition that stipulates local aboriginal people can have access to creeks in the work area at any time for “spirit bathing.”
Besides creating hazards with equipment working on a remote site, it will add business costs for monitoring. And secrecy around heritage sites generally will undoubtedly stoke conflict as some people are allowed access to “Crown land” while others are not.
Like the United Nations Declaration on the Rights of Indigenous Peoples [UNDRIP], which inspired DRIPA and was created by the UN’s International Labour Organization, the concept of “intangible cultural heritage” is an UN creation, this one from the UN Educational, Scientific and Cultural Organization (UNESCO).