B.C. Fails to Meet Indigenous Consent Standard for Mining – 8 recent cases

The passing of the Declaration on the Rights of Indigenous Peoples Act (DRIPA) by the B.C. Legislature in November 2019 was supposed to be the start of a new chapter in the nation-to-nation relationships between Indigenous peoples and the provincial government. DRIPA legally requires the provincial government to “take all measures necessary” to ensure that B.C.’s laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

But two years on, implementation of the standard of Free, Prior and Informed Consent (FPIC) of Indigenous Nations before mining activity can take place on their territories—one of the bedrock principles on which UNDRIP is based—is still as distant as it was in 2019. Indigenous Nations across B.C. too often remain locked in long and costly legal battles or adversarial relationships with mining companies that continue to behave as if DRIPA doesn’t exist. While B.C.’s mining legislation as a whole continues to allow mining companies to operate with little regard for Indigenous rights, the Mineral Tenure Act—which has its origins in the colonial gold rush days of the 1850s—is arguably the worst offender. In over 150 years, it has not been updated to reflect Indigenous rights.

The eight examples in this document illustrate how mining interests are prioritized under B.C. law even over the objection of First Nations and how FPIC remains elusive even after passage of DRIPA by the B.C. government. This is especially concerning given that in 2020 alone, approximately 5,000 new mineral claims (1.9 million hectares) and approximately 1,400 new placer claims (63,000 hectares) were acquired without First Nations’ knowledge.