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AME Statement on Mineral Tenure Act Modernization

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AME Statement on Mineral Tenure Act Modernization

 

 

 

 

 

AME continues to seek transparency, certainty and clarity on the Mineral Tenure Act (MTA) modernization process. Industry must play a more significant role in this process as a tenuring system that protects the intellectual property of our members and ensures their ability to explore is at the crux of our members’ interests. Inclusion of industry, consultation and reasonable timelines to engage must also be at the heart of a modernized mineral tenuring process. It is right to respect Indigenous rights, traditions and interests in land-use decisions. It is reasonable for the industry to seek clarity and certainty as we move forward so that we can ensure that B.C. remains a competitive, predictable and stable environment for mineral exploration and capital investment in the scope of reconciliation. We remain available to participate in the modernization of the MTA pursuant to the Declaration Act.

 

 

AME wants to get to work on modernizing the MTA pursuant to Justice Ross’ decision regarding a consultation duty that must be applied to online staking of mineral claims. It is imperative that we end up with a modernized MTA that protects the integrity of explorers and their ability to act on insights of BC’s mineral potential.

 

 

Today, the BC Ministry of Energy, Mines and Low Carbon Innovation (EMLI) sent out two news releases. The first was regarding orders to protect Gitxaala Nation and Ehattesaht First Nation’s (the “Nations”) mineral interests, and the second is with respect to MTA modernization. AME was not privy to either the preliminary designs of an MTA modernization and engagement process or about the interim measures. For additional context on the MTA, please see our posting here.

 

 

 

What We Know About the Interim Measures

 

 

New interim measures place restrictions on mineral claim registrations and mining activities in the Nations’ territories, while the work of the MTA proceeds. The interim measures follow an agreement between B.C. and the two Nations on how to approach the September 2023 Gitxaala v. British Columbia BC Supreme Court ruling.

 

 

These interim orders are a temporary measure, and will be repealed when a modernized MTA is in place, with legislation planned for the spring of 2025.

 

 

The Nations and EMLI have also agreed to support amendments to the interim orders if EMLI and either or both Nations reach agreement with companies seeking to explore or mine in their territories.

 

It is our understanding that EMLI will not issue any additional interim measures in this fashion during the MTA modernization process.

 

 

What We Don’t Know About the Interim Measures

 

 

Absent from the news release were details regarding whether the settlement included the settlement of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) question. It is AME’s understanding that this settlement did not address the question about the legal standing of UNDRIP and the Declaration Act. It is our assumption that this question will still be the subject of an appeal between the Nations and the Ministry of the Attorney General.

 

 

We are not aware of any other efforts by other ministries that may serve to act as interim measures in this fashion during the MTA modernization process.

 

 

What We Know About the MTA Modernization Process

 

 

The next steps of the MTA modernization focus on a distinctions-based consultation and cooperation process with First Nations as well as an engagement process with industry, ENGOs, local governments and interested British Columbians.

 

 

What We Don’t Know About the MTA Modernization Process

 

 

We are still unsure how AME will play a role in the modernization process. We know that “existing tables” will continue to be used; however, we are not sure what scope of meaningful and weighted public interest engagement it will entail. Further, we note that a working group will include participants from the First Nations Leadership Council (FNLC), BC First Nations Energy and Mining Council (FNEMC) and the B.C. government. Unfortunately, we note that industry is not part of this working group.

 

 

We also still do not know the level of public interest engagement that will occur that will serve to properly inform the B.C. government at any government-to-government (G2G) process. The government’s news release on MTA modernization notes that “both cooperation and consultation with First Nations and engagement with industry and interested groups launch this month (March 2024).” It is still unknown what the difference between “cooperation and consultation” and “engagement” is. It is our expectation that industry will play a more significant role in this modernization process that is at the crux of our members’ interests. We agree with the Nations and the government that sitting down at a table and engaging is the way forward. Right now, we do not know if that is the intent. We respect G2G processes, and hope all parties will take this into consideration.

 

 

Further to the quote from the First Nations Summit, we are also unsure how legal pluralism and distinctions-based consultation will occur. In their recently released First Nations Critical Minerals Strategy, the FNEMC, which supports the FNLC and is a member of the proposed MTA Government Working Group, noted on page 60 of their report that:

 

 

For thousands of years, First Nations with traditional territories in British Columbia have developed sophisticated governance systems for their societies, including laws for the use and conservation of natural resources. First Nations laws are paramount to international law, including the United Nations Declaration on the Rights of Indigenous Peoples, and the laws of the Crown governments of Canada and British Columbia. Where there is a conflict between First Nations laws and Crown government laws, First Nations laws and legal orders prevail. This includes paramountcy of First Nations laws over Crown constitutional law, statutes, regulations and judge-made law. Critical mineral strategies developed by the governments of Canada and British Columbia must not conflict with First Nations jurisdiction, authority and stewardship of mineral resources, including critical minerals, in their territories. The majority of First Nation lands in the province are unceded and unsurrendered. First Nations consent is the minimum standard for all phases and activities of mineral exploration and mining. Consent is required for land access, mineral and placer claim registrations (staking), mining, reclamation and restoration of mine sites and return of security (bonds) to project owners. First Nations have the right to say “yes”, “no” or “maybe”.

 

 

AME has been, and continues to be, committed to the implementation of the Declaration Act. We have reinforced this fact with the BC Government. However, it is imperative that “seeking clarity” on the intentions of Government regarding their view on law is not either intentionally or unintentionally labelled by anyone as “misinformation” or “anti-reconciliation”. Everyone has learned from the rollout of the recent Land Act Amendments proposal, including the Government of British Columbia, that a lack of clarity has the potential to cause anxiousness and panic, which is destructive to all parties and counter to a sustainable dialogue. It must be underscored again that industry seeking clarity, or industry asking for clarity of process is not spun as encouraging negative dialogue. We await the Government of British Columbia’s response to the First Nations Critical Minerals Strategy, and clarity on how this strategy fits into the Government’s definition of distinctions-based consultation.

 

 

What do we want to see in a modernized MTA?

 

 

Fairness must be at the heart of a modernized mineral staking process. It is right to respect Indigenous rights, traditions, and interests in land-use decisions. It is reasonable for the industry to seek clarity and certainty as we move forward together.

 

 

Transparency and efficiency must also drive the modernization effort. We believe a modernized Act should provide clarity and certainty of process and lead to the timely and efficient granting of permits.

 

 

As our province’s mineral exploration and mining takes place on Indigenous traditional territories, we believe mineral development projects catalyze economic reconciliation with Indigenous Nations. We encourage our members to build mutually beneficial relationships that advance reconciliation, relationships based on trust, transparency, mutual respect and recognition.

 

 

Our members know that responsible mineral exploration is only possible by being inclusive and collaborative, building trust and reaching a mutual understanding of the local benefits and potential impacts. We recognize and applaud Indigenous aspirations for greater involvement in the natural resource economy. We know there are numerous opportunities for enhanced participation through employment, training, procurement and project investment– all of which have the potential to generate positive social and economic outcomes for Indigenous communities. Mineral exploration programs, of which there are hundreds at any given time, consistently provide employment and training opportunities for Indigenous communities all over the province. We are also one of the few industries offering opportunities in remote and rural communities in all regions of BC and encouraging the creation and growth of Indigenous-owned and affiliated businesses.

 

 

AME’s members support efforts to modernize the MTA. We respect the Province engages in G2G processes and negotiations with First Nations on many matters. However, it is imperative that our membership, and British Columbians who rely on mineral exploration, mining, and the associated value chain, are appropriately represented in G2G processes. It is also very important the Province is aware of, and carefully considers, the broader implications these matters have for our industry and how international capital markets perceive British Columbia as a place to invest. We continue to associations may be better positioned to provide meaningful input on behalf of our members to inform G2G processes and negotiations.

 

 

Next Steps

 

 

AME is advocating on behalf of its members to help shape a modern approach to exploration and engagement that respects all land users while also maintaining the competitive nature of our industry, advancing reconciliation and working towards a low carbon future.

 

 

Responsible mineral exploration is possible only through building and sustaining respectful, open, and long-lasting relationships built on trust and mutual understanding. As the largest private-sector employer of Indigenous peoples in remote communities, the mineral exploration and mining industry is uniquely positioned to support efforts toward reconciliation.

 

 

AME values our relationship with the Province of British Columbia and with Indigenous groups to enable dialogue and understanding and to build the positive relationships that are integral to successful resource development.

 

 

We remind all of our members of the importance reconciliation plays in our work. Seeking clarity on process should not be mischaracterized by anyone as anything other than that. While we seek clarity, we will continue to advocate on our members behalf. We also remind our members of valuable Indigenous relations practices. In conducting their activities, AME members should strive to:

 

·     Respect existing and asserted Aboriginal rights and title and treaty rights of Indigenous peoples.

·     Work proactively and continuously with Indigenous groups to build mutually beneficial relationships that advance reconciliation and that are based on trust, transparency, mutual respect and recognition.

·     Respect the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Seek Free, Prior and Informed Consent (FPIC) wherever possible.

·     Engage early and frequently with Indigenous groups. Be responsive to concerns raised and transparent about activities that may affect Indigenous values and interests.

·     Incorporate local and/or traditional Indigenous knowledge into socio-environmental studies and management plans. Be respectful of the nature of such information and maintain confidentiality when requested.

·     Provide potentially affected Indigenous groups with timely and accessible information needed to encourage open, meaningful and inclusive dialogue.

·     Respect the diversity of interests and cultures and traditions between Indigenous groups. Respect their diverse views towards land and its resources.

·     Encourage governments to carry out their duty to consult and accommodate in a manner that reasonably balances existing and asserted Aboriginal and treaty rights of Indigenous people with the interests of AME members.

 

Posted March 10, 2024

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