In part 1 of this series, we talked about what makes a mineral ‘critical.’ We also discussed how current societal, economic, and political atmospheres have applied pressure on sensitive regions to open for business – mining, that is.
This month, let’s unpack mineral claims and prospecting with a focus on consultation (or a lack thereof) with Indigenous communities, and what changes may be coming in the future.
Land ownership after colonization
Notable mineral exploration events since European colonization in the parts of Turtle Island now known as Canada include: coal discoveries in Nova Scotia (1670s), unearthing of iron in Québec (1730s), and the Klondike gold rush in the Yukon (1890s). With settlers and land surveyors came privately-owned property, where traditional territories of Indigenous peoples were carved into a jigsaw of individual parcels.
Historic treaties signed before 1975 set aside land for First Nations, known as reserves. Modern treaties, many of which are actively under negotiation, seek to clarify rights of First Nations, Inuit, and Métis on land and resource ownership, and management.
Apart from a few exceptions, landowners do not own the minerals found beneath their property. These rights are vested within the Crown (provincial or federal, depending on jurisdiction).
Free-entry
‘Free-entry’ continues to underpin most mining laws today, where prospectors and companies can stake a claim on private or Crown land without informing private property owners or Indigenous peoples. What does this typically involve? – create an online account within a provincial or federal government mining registry, click a few grid cells on an interactive map, and pay a minor fee (e.g., 61 cents per hectare in Nova Scotia, $1.75 per hectare in B.C.) to stake a ‘claim’ to the subsurface minerals located there.
The archaic free-entry principle to mining exploration, rooted in settler colonialism, continues to perpetuate barriers to free, prior, and informed consent for Indigenous communities in Canada. But recent legal proceedings have shaken up the status quo, as a long overdue first step towards more inclusive framework in today’s rush for ‘critical’ minerals.
Duty to consult
In September 2023, a Supreme Court of B.C. case Gitxaala v British Columbia (Chief Gold Commissioner) ruled that First Nations in the province must be consulted before any mineral claims are made in their territories. This court ruling also came with an 18-month deadline for the provincial government to overhaul its mineral tenure regime to invoke the ‘duty to consult’ with any of the 200 First Nations whose traditional territories overlap with prospector interest before any claims are staked.
Last year’s ruling reinforces the precedent-setting 2012 decision in the Yukon Court of Appeal case Ross River Dena Council v Government of Yukon that found the free-entry mineral tenure system breached the constitutional duty to consult with Indigenous communities.
Legal outcomes in the Yukon and B.C. are likely just the first dominos to fall if other jurisdictions continue to drag their feet on ridding the free-entry principle from mining laws. In the past few months, the Mitchikanibikok Inik First Nation has taken the Province of Quebec to court over continued application of free-entry in the Mining Act. As mineral claims continue to skyrocket in Ontario, similar legal action is likely forthcoming by First Nations as well.
Canada’s outdated laws but digitized infrastructure governing free-entry mineral exploration are rooted in the colonial mindsets of possession and extraction. Recent court rulings that begin to give a voice to Indigenous communities in a space where they have been largely excluded provide momentum and hope that systemic change is on the way.
Photo by Laura Seaman on Unsplash
