British Columbia mining hampered by DRIPA ‘confusion’

West High Yield Resources (TSXV: WHY) corporate secretary Barry Baim is one of many mining executives active in British Columbia wondering when the legal fog surrounding Indigenous rights will dissipate. 

Despite reaching an agreement with B.C.’s Osoyoos Indian Band, Calgary-based West High Yield has seen its efforts to advance Record Ridge, a proposed $30-million magnesium mine in the province’s southeast, stymied in recent months by legal challenges from a U.S.-based First Nation located downriver. The group argues that the project could affect lands and waterways of cultural and ecological importance.  

In June, B.C.’s Supreme Court lifted an injunction that had temporarily restricted construction activities pending resolution of a judicial review, allowing work on the project to resume after a six-week halt. Even so, the repeated delays mean West High Yield will be hard pressed to meet its goal of starting production at Record Ridge in next year’s first quarter. 

Situations like these are a result of British Columbia’s 2019 decision to pass the Declaration on the Rights of Indigenous Peoples (DRIPA), a first of its kind in Canada. The law commits the provincial government to align its legislation with the principles contained in the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and to develop action plans in consultation with Indigenous peoples. 

DRIPA “has been a detraction for sure” as West High Yield attempts to raise funds for Record Ridge and a magnesium oxide plant to process output from the mine, Baim told The Northern Miner in an interview. 

“We have specifically talked to a number of financiers about our project, and one of the stumbling blocks is the lack of clarity over when we will get our final permit to disturb ground. Until this gets resolved, I believe capital is looking at British Columbia and saying: ‘We’re uncertain as to the future there, we need to invest elsewhere.’” 

Landmark ruling  

The upcoming Supreme Court case – which pits British Columbia against the Gitxaala Nation — follows a landmark ruling in December by the provincial court of appeal that found the province’s mineral tenure regime breached the Crown’s duty to consult Indigenous Peoples. It also concluded that DRIPA allows courts to decide whether B.C. law is consistent with UNDRIP. 

The Gitxaala Nation decided to challenge the province’s Mineral Tenure Act after discovering that about 17% of its territory has been staked without the nation’s knowledge, Chief councillor Linda Inness told The Northern Miner. 

The Mineral Tenure Act and its automated claim-staking system creates an “overall disregard from the province and industry” for First Nations, Innes said in an interview. 

“Prior to our court case, we had some pretty bad actors doing exploratory mining,” she said. “By the time we’re aware that someone has been granted rights within our territory, the dominoes are already falling and the decisions have already been made. The Mineral Tenure Act is such an antiquated policy. Consultation must be built into the system, not bolted on after decisions are made.” 

Those bad actors include now bankrupt miner Banks Island Gold, whose former Yellow Giant mine sits on Gitxaala land in northern B.C. In 2023, the company’s former CEO was found guilty of 13 environmental violations in relation to waste discharges from the mine in late 2014.  

Yellow Giant “is still there and it’s still not remediated. Industry is not held accountable,” Innes says.  

“We’re not against mining. We’re against bad actors and bad practices. Responsible development is not the problem. Irresponsible development is.” 

Industry hub 

B.C. is home to one of the largest concentrations of mining and exploration companies in the world. It’s also home to 204 First Nations, about one-third of the Canadian total. Ontario is next, with about 130 First Nations. 

Mining accounts for $18 billion in annual economic activity in B.C. and almost 30% of goods exports, supporting some 4,000 small, medium, and Indigenous affiliated businesses according to data compiled by the Mining Association of British Columbia. Some 11 metal mines, five steelmaking coal mines and two smelters operate in the province – with dozens of projects at various stages of advancement. 

How fast – and how far – these investments advance in coming years could be well determined by an upcoming Supreme Court of Canada case. 

Canada’s top court has agreed to hear an appeal of a B.C. court ruling brought by the provincial government. It’s asking parties in the case to serve and file their responses by Sept. 24. 

In December, B.C.’s Court of Appeal ruled that DRIPA incorporates UNDRIP and creates legally enforceable obligations for the province and developers. It also found that UNDRIP and the province’s mineral claims regime are “inconsistent.” 

UNDRIP sets minimum standards for the survival, dignity and well-being of Indigenous peoples. One of its key provisions is the principle of “free, prior and informed consent” (FPIC), which calls for Indigenous peoples to participate meaningfully in decisions affecting their lands and resources. 

In April, B.C. Premier David Eby abandoned plans to suspend or amend DRIPA during the spring legislative session. B.C. will instead work together “with all First Nations leaders on a path forward to discuss and consider the government’s stated legal concerns, while upholding the title and rights and human rights of First Nations,” he said. 

‘Devastating’ 

DRIPA “has created an immense amount of confusion,” Thomas Isaac, a Vancouver-based lawyer and partner at Cassels who chairs the firm’s Aboriginal law group and has written a book about the B.C. law, told The Northern Miner. 

“It’s impossible on a day-to-day basis to interpret every law in B.C. as being consistent with UNDRIP. It’s silliness and unnecessary for reconciliation. It’s not good for business and we’re now in a state of chaos. All thanks to the government of British Columbia. This is all self-inflicted. None of this was necessary. It’s been devastating to the business community.” 

To be sure, mining investments haven’t stopped flowing into B.C. because of DRIPA – quite the contrary. 

Exploration and evaluation expenditures in the province jumped 36% last year to a record $751 million as junior miners turned on the tap amid sustained appetite for copper projects, according to data compiled by the EY consulting firm. 

The result contrasts with declining exploration investment across much of Canada. Still, most mining investment in B.C. “tends to be focused on those projects that are moving forward because the First Nations have come to agreement with the proponents and the regulatory approvals are largely in place,” says Todd Stone, a former member of the provincial legislature who heads B.C.’s Association for Mineral Exploration. 

“Where we need to be worried is the next wave. The next wave is quite a ways behind, and at the moment it’s not a very big wave. This is because there are regulatory policies that governments have made that have tended to hold back the progress of junior mining companies. On top of that you have DRIPA and a number of court cases. All of that gets conflated.” 

AME is planning to be an intervenor in the upcoming Supreme Court of Canada case, says Stone. 

“We need some clarity as early as we can,” says Stone, who voted for DRIPA when he was a provincial legislator. 

“The legislation was aspirational in nature. It was a framework. It was a tool to accelerate reconciliation. DRIPA was not supposed to provide a veto. It was not supposed to represent a massive transfer of land resources and rights to First Nations. Yet it has become all of that and more.” 

Earlier ruling 

Complicating matters is a 2025 ruling by the B.C. Supreme Court that recognized the Cowichan Nation’s Aboriginal title to about 3 sq. km of historic village lands in Richmond. The decision is being appealed by the provincial government, the City of Richmond and the Musqueam First Nation. 

“We’re in this climate right now in B.C. where industry and private property holders are unsure of what their obligations are to meet and to ensure Aboriginal or Indigenous rights are upheld, and where that encroachment of Indigenous rights might be onto their own private property interests,” Sara Ghebremusse, a professor at the University of British Columbia’s Peter A. Allard School of Law who specializes in mining governance, law and development, said in an interview. 

“Not only is this legal limbo generating a lot of questions, but it’s also compounding some of this fear and uncertainty that industry and private property holders have.” 

Indigenous consultation is a key feature of B.C. law that should be welcome by all of society – including investors – because of the priority is places on protecting the environment, says Guy Archibald, executive director of the Southeast Alaska Indigenous Transboundary Commission (SEITC).  

His group – which represents 14 tribes, including members of the Tlingit, Haida and Tsimshian, whose territory extends across B.C. and Alaska – says rapid mining development in the northwestern part of the province “poses a “significant threat” for Southeast Alaska communities located downstream.  

SEITC is especially concerned about major projects such as Canagold Resources’ (TSX: CCM; US-OTC: CRCUF) New Polaris mine and Skeena Gold & Silver’s (TSX: SKE) Eskay Creek mine because of their potential consequences on the environment. 

“Our tribes have been on this landscape for tens of thousands of years through periods of climate change,” Archibald, a former miner, said in an interview.  

“There needs to be a mechanism where that knowledge of the environment can be used with protections to help reduce the environmental effects that these projects have. The only way that’s going to work is that if the tribes here are allowed to conduct their own environmental assessments based on their own values, on their own timelines, through their own governance structure — not just evaluating what a contractor did or a mining proponent did.” Economic growth and tribal sovereignty aren’t mutually exclusive, SEITC’s Archibald argues.  

“They can both happen, they can both be recognized, and they can both move forward better through deep consultation and consent of the tribes,” he said. 

“We’re not opposed to mining. Metals, to some level, are necessary. Any conditions we may put on a mine authorization lessen the uncertainty of bad things happening, which can only lead to better long-term outcomes, both for the mining companies and the general public that has to deal with the legacy issues – because there’s always legacy issues with mines.”