A new Indigenous consultation process for mineral exploration in British Columbia could spell the end of its mining sector. If fully realized, Premier David Eby and the B.C. NDP would effectively shut down prospecting and early-stage mining exploration, killing investment needed to keep B.C. a leader in mining and metals production.
The province is bringing in a new mineral staking system, without making any legislative or regulatory changes, on March 26. Mineral staking is the first step to setting up a mine: miners are automatically granted exclusive rights to explore and develop an area of land in B.C. by staking out a claim to it and registering that claim with the government.
But, under the new system that takes effect this spring, claims will no longer be automatically granted when registered with the government. Instead, there will be a staking application process in which the government will not approve any claims until First Nations groups have been consulted.
Under the old way of staking a claim, written into the law in 1859, prospectors were required to literally pound stakes into the ground to be granted the right to search for minerals in that area. This system was designed to ensure that even the smallest prospector with the right intuition and a little luck would have the same opportunity at staking a major discovery as a large mining outfit. The province moved to an online system in 2005, in which mineral claims are digitally staked in a provincial online mineral tenure registry, without the need to physically set foot on the property.
The upcoming change in process is a response to a court challenge launched in 2021 by the Gitxaala Nation. The First Nation challenged the claims registryat the B.C. Supreme Court, claiming it violated their constitutional rights under Section 35. In 2023, Justice Alan Ross ruled in favour of Gitxaala, noting that while the environmental impact of prospecting was limited, the spiritual impact was significant enough to warrant consultation. The B.C. government could have appealed the ruling, but it chose not to.
It’s not hard to see how the government’s new framework for staking mining claims in B.C. is unworkable, wide open to abuse and devastating to independent prospectors and small exploration outfits. It requires prospectors to disclose where they plan to stake before they can secure the rights to do so, which is akin to forcing a company to give away intellectual property and trade secrets. Imagine requiring a tech company to disclose its proprietary idea, trade secrets or software prior to issuing a development permit. What would happen? Every tech startup in Vancouver would move to Seattle the next day. This is the gun barrel B.C.’s mining industry is staring down.
Further, the cost and time burden of consultation to stake a property based on a hunch is exorbitant for the prospector and is a poor use of many First Nations’ limited resources. These new requirements will ensure investment in B.C.’s mining exploration sector, already down $100 million in 2023 compared to 2022, continues to fall. All told, the plan has serious implications for the industry, which had an $18-billion economic impact on the province in 2022and supports 35,000 jobs.
The direction of travel of B.C.’s current government is causing difficulties that extend far beyond prospecting and staking. In 2019, the B.C. Legislative Assembly unanimously passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA), Section 3 of which explicitly establishes the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as the province’s framework for reconciliation. DRIPA requires the B.C. government to “take all measures necessary to ensure” the province’s laws align with UNDRIP.
It is important to understand that UNDRIP itself was never intended to direct the laws of Canada; its focus was primarily directed at countries without human rights guarantees or laws to protect their Indigenous peoples from real and ongoing abuses. Amen. But that doesn’t mean that countries like Canada, which uphold the rule of law and believe that strong First Nations make for a better country, haven’t fallen within UNDRIP’s scope. In reality, UNDRIP and DRIPA are often used by overzealous anti-resource advocates to halt economic development in the province.
Used as a guide, UNDRIP is a positive step to real reconciliation and should be celebrated, but it is currently being used as a blunt instrument that will cause more problems and animosity in the future.
The instinct of B.C.’s current NDP government and its adherents to stymie development rather than find solutions that create prosperity should concern all British Columbians and Canadians. The federal Critical Minerals Strategy, designed to make Canada a mining superpower, is completely useless if no one can prospect, explore and build a mine; a result that would impact the future prosperity and success of everyone in our country.
Prospecting is the creative destruction lab of mining. Without it, there is no future exploration and there are no future mines. Today, there are 16 proposed mines for critical minerals in B.C. Were they all to be built, B.C. would receive $36 billion of initial investment followed by an estimated $791 billion of economic output over the mines’ lifetimes. None, absolutely none, of these mines would exist without prospecting and prospectors. The newly proposed staking reforms cast a chill over investment by killing off prospecting and thereby will slow or stop new mines from being found or developed in the province.
Perhaps the worst part in all of this is that the new system, despite working to protect First Nations from prospectors’ claims, will also negatively impact First Nations communities that would have benefited from new mines. This is sad. Richer First Nations communities make for a stronger province and country. Mining and other resource industries have a unique ability to contribute, via First Nations partnerships, to real prosperity and reconciliation.
The B.C. NDP must reconsider its planned changes to mineral staking and set prospectors free for the benefit of all British Columbians.
Adam Pankratz is a lecturer at the University of British Columbia’s Sauder School of Business and a board member of Rokmaster Resources.
National Post