Supreme Court to Hear Landmark Case Involving Mineral Rights and Licensing Regimes

The Supreme Court of Canada is poised to hear a case that will affect the future of mining and natural resource projects in British Columbia and across Canada. For participants in British Columbia's mining industry, the case raises fundamental questions about the viability of the mineral staking model and the stability of early-stage mineral tenure rights, including how mineral claims are acquired in the first instance.

In Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430, the British Columbia Court of Appeal affirmed that the administration of British Columbia's mineral tenure regime breached the Crown's duty to consult Indigenous Peoples. The Court also concluded that the Province's Declaration on the Rights of Indigenous Peoples Act (Declaration Act) allows courts to decide whether British Columbia law is consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

In granting leave to appeal, the Supreme Court of Canada will have the opportunity to clarify when, and how, courts can declare that domestic legislation is inconsistent with UNDRIP.

Background of the Case

British Columbia's Mineral Tenure Regime

Mineral claims in British Columbia are governed by the Mineral Tenure Act (MTA). The Chief Gold Commissioner (the Commissioner) is empowered under the MTA to create and administer the province's mineral tenure regime. Under the current system, any person can obtain a "free miner certificate" by completing an online application and paying a fee.

This current regime, which provides for quick, low-cost acquisition of mineral claims without prior Aboriginal engagement, has long encouraged exploration activity in British Columbia. The holder of a free miner certificate can electronically register a mineral claim over certain Crown land, including land subject to asserted Aboriginal rights. If the land is not subject to any pre-existing mineral claims or a "no-staking" reserve, the claim is automatically granted to the applicant. No consultation with or notification to affected Indigenous peoples occurs when a mineral claim is registered. Consultation only occurs when, and if, the applicant applies for a permit to begin exploration activities under the Mines Act.

The Claim and British Columbia Supreme Court Decision

Gitxaala Nation and Ehattesaht First Nation sued the Commissioner, alleging that issuing mineral claims under the MTA without consultation breached the Crown's duty to consult Indigenous Peoples. The petitioners argued that the Crown breached its duty to consult (1) under section 35 of the Constitution Act, 1982 and (2) under UNDRIP as implemented by the Declaration Act.

As described in our previous post, the British Columbia Supreme Court agreed with the petitioners on the first point, holding that the mineral tenure regime breached the Crown's constitutional duty to consult. On this basis, the court directed the Province to design a new regime under the MTA where affected Indigenous Peoples are consulted before mineral claims are issued.

In response to this decision, the British Columbia Government designated the asserted Gitxaala and Ehattesaht land as "Deferral Areas," freezing any further claims and mining operations in those zones.

While the trial decision declared that the MTA breached the Crown's duty to consult, it also ruled that the Declaration Act did not incorporate UNDRIP into British Columbia law, and that courts should not rule on whether domestic law is consistent with UNDRIP. The petitioners appealed to the British Columbia Court of Appeal.

British Columbia Court of Appeal Decision

The Court of Appeal ruled that the Declaration Act incorporated UNDRIP into British Columbia law and requires domestic law to be consistent with UNDRIP. As a result, the rights and obligations embodied in UNDRIP set out the minimum standard with which laws in British Columbia must comply. As a corollary, British Columbia law is now presumed to comply with UNDRIP, meaning that judges must interpret legislation in a manner that does not conflict with UNDRIP.

The dissenting opinion at the Court of Appeal concluded that the Declaration Act does not give courts a mandate to determine whether British Columbia law is consistent with UNDRIP. The dissenting judge reasoned that courts weighing in on the consistency (or inconsistency) between international declarations and domestic law would take them beyond their proper role in Canada's constitutional framework.

Looking Forward

In granting leave to appeal, the Supreme Court of Canada is poised to provide clarity on issues of immense practical consequence for mining and resource project proponents across Canada. The Supreme Court will determine whether the Declaration Act and its "equivalents"—likely referring to the United Nations Declaration on the Rights of Indigenous Peoples Act, the analogous legislation at the federal level—empower courts to determine if provincial and federal law is consistent with UNDRIP. This decision has the potential to create a cascading effect on provincial and federal legislation to which mining and natural resource actors are subject, with implications for claim acquisitions, early-stage title certainty and project timelines.

*The authors are grateful to summer student Ben Clarkson for his assistance with this post.