McMillan lawyers warn precedent could be set for restricting other resource activities
The Association of Mineral Exploration (AME) and McMillan LLP law firm are raising concerns over the B.C. government’s temporary ban on mining and mineral exploration activities on Banks Island and a part of Vancouver Island.
One of the concerns over the “temporary” moratorium on new mineral and placer mining claims in Ehattesaht and Gitxaala First Nation traditional lands is that it’s actually not temporary but “indefinite,” according to the orders in council (OICs) that give effect to the moratoria.
And while the AME has been given assurances that no other areas in B.C. will be subject to such moratoria, and that they will be removed once the Mineral Tenure Act is updated, McMillan warns that the use of “a little-known law” — the Environment and Land Use Act – to ban certain activities could set a precedent for banning other resource activities elsewhere in B.C.
Meanwhile, Geoff Plant, former attorney general and treaty minister under the Gordon Campbell Liberal government, said he isn’t concerned with the legal mechanism being used to set the moratoria, but does think the B.C. government needs to do a better job of explaining to industry how their rights and interests will be protected while it strives to address aboriginal rights and interests.
Last week, the B.C. government announced it was putting all mining and mineral exploration and permitting activity on hold in two specific areas: Banks Island (traditional Gitxaala territory) and a portion of Vancouver Island (Ehattesaht).
The moratoria are supposed to be temporary, until the Mineral Tenure Act can be amended.
At issue in that case was the fact anyone can file a mineral claim in B.C. without the consent or even knowledge of First Nations.
The Mineral Tenure Act was challenged in court by the Ehattesaht and Gitxaala, and the BC Supreme Court ordered the B.C. government to make changes to the act to accommodate First Nation interests and the province’s duty to consult.
The provincial government is in the process of making changes to the Mineral Tenure Act, but took the additional step of placing moratoria on mining and exploration activities in Ehattesaht and Gitxaala territories to avoid further legal action.
The AME said it was led to understand that the moratoria are temporary measures that would be in place only until the Mineral Tenure Act is amended in 2025.
But that’s not what the Orders in Council that give effect to the moratoria say, according to the AME.
“The language differs from the draft documentation we received and from the conversations we had with representatives from the Ministry of Energy, Mines and Low Carbon Innovation just prior to the settlement announcement,” the AME says in a news release.
According to the OICs, the moratoria on all mining activities are for five years for new mining leases and new permits, and indefinite for new mineral or placer claims without agreement of the respective First Nations.
Exceptions can be made to the ban, if First Nations support the activities, and there are also exemptions for certain mining related activities, such as reclamation and monitoring, as well as for sand and gravel operations.
“Effective March 7, 2024, orders made under the Environment and Land Use Act have established a five-year moratorium on certain mining activities within the Ehattesaht Hay-na Mining Deferral Area and the Lax K’naga Sts’ool Mining Deferral Area, as well an indefinite pause on the registration of new mineral and placer claims in those areas,” the government says in a notice to tenure holders.
“The language in the orders do not reflect temporary measures,” the AME says. “Rather the language indicates some of the prohibitions expire in 2029, while others are indefinite.”
Despite the language of the orders in council, the AME says that it has been given assurances by Energy, Mines and Low Carbon Innovation (EMLI) that the orders are, in fact, temporary. It has also been given assurances that similar moratoria will not be established elsewhere in the province.
“Further to our discussions with EMLI, it was confirmed to AME that these protections are temporary and will be repealed when an updated MTA is in place,” the AME says in its press release. “The ministry will not consider similar protections for other First Nations and instead intend to address their interests as part of the MTA reform process.”
Despite these assurances, the AME is recommending that prospectors and mineral exploration companies with claims or permits in the affected areas be compensated.
“We are also urging the government to engage with impacted tenure holders and discuss fair remedy immediately,” the AME said.
Meanwhile, the Vancouver law firm, McMillan LLP, is raising broader concerns over the legal mechanism – the Environment and Land Use Act — used to implement the moratoria and the precedent it could set. It is unprecedented for two reasons, McMillan said.
“This is the first time any government has used this power to suspend previously issued permits,” it says.
McMillan adds: “It is the only time as far as we are aware that the government has imposed blanket restrictions on a resource development activity and then said it is open to relaxing the rules if affected parties can get an agreement with First Nations.”
“No prior government has ever used these powers so broadly, or said openly that the restrictions may be removed if holders of such rights can reach agreement with First Nations.”
McMillan warns that the government may be opening the door to other similar bans on resource activities, if First Nations oppose them.
“While these specific orders are limited to only parts of B.C. and B.C.’s mining laws, if government truly has the legal authority to make them under the Environment and Land Use Act, there is nothing that would preclude their future use in other areas of B.C. and other sectors,” the bulletin says. “And one might reasonably expect some Indigenous groups will ask government to do exactly that.”
Plant agrees that the legal tool being used to implement the moratoria is “unusual,” and said there is a genuine question to be asked: “When does a deferral becoming a taking?”
Otherwise, though, he thinks there’s nothing untoward about the legal mechanisms the government is using to address aboriginal rights.
“I don’t think that what has happened here means that the sky is falling on the mineral exploration industry in British Columbia,” said Plant, who specializes in aboriginal law at Gall Legge Grant Zwack LLP.
“This tool being used under the Environmental Land Use Act is unusual,” Plant told BIV News. “It’s not used very often. But this is exactly the kind of situation where it can be used.”
Plant suggested the B.C. government could do a better job of explaining to resource industries how their rights will be affected when government implements policies intended to address aboriginal rights.
“I encourage the government to spend more time saying what they’re going to do to protect the vested interests of third parties whose interests are being directly affected by these orders,” Plant said. “That’s the piece that needs to be in place, if government is going to have the political licence to continue to advance the project of reconciliation. In the absence of that promise to keep third party interests whole, I think the government will have a hard time continuing to sell the reconciliation agenda.
“If we’re going to continue to have initiatives that are land and resource-based that are about addressing the rights and interests of indigenous people, my first priority would be to do that in a way that does not affect existing interests at all and protects them. Secondly, if that’s unavoidable, then government needs to be clear about its willingness to compensate those whose rights are affected.”
That leads to the question of when a deferral becomes a de facto expropriation.
“Maybe it’s OK to hold people in limbo for six months or a year, while you’re sorting out the larger public policy framework,” Plant said. “But putting those people on hold for five years is a long time.
Radha Curpen, co-head of Bennett Jones’ Environmental Law practice, said freezing permits that have already been issued is a negative signal to send to investors.
“Investors and the business community were already cautious about investing in our province,” she said. “What is the message to industry and the business community? We have to be careful that the message is not that we are closed for business.
“As it should, business respects the rights of First Nations and other indigenous peoples, and we should continue to strive towards increasing meaningful multi-faceted participation by First Nations and other indigenous communities in projects and operations.
“We should not approach this positive moment by taking away permits already issued. We need capital investment in order to achieve economic reconciliation.”
