A junior exploration company with a proposed mine project near Revelstoke is taking the province to court over permitting delays that the company says may be related to a mischaracterization by the Mines minister on the extent of aboriginal title in B.C.
A judicial review filed by Taranis Resources Inc. (TSX-V:TRO, OTCQB:TNREF) may end up as a legal test of the limits of the “consent” provisions in the Declaration on the Rights of Indigenous Peoples Act (DRIPA.)
While governments have given assurances that consent provisions in DRIPA and the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP) are not a veto for First Nations, Taranis suggests the B.C. government appears to operating as though it is, at least in the case of Thor project near Revelstoke.
“We believe the government is unwilling to do its legal duty here because of First Nation pressure,” Taranis CEO John Gardiner said in a written statement. “While consideration of Indigenous rights is part of the Crown’s duty to consult, the Supreme Court of Canada has repeatedly said that First Nations do not have veto. So government has to follow the law here.”
Central to the company’s application to the court is a statement made in May this year by Josie Osborne, minister of Energy, Mines and Low Carbon Innovation, to mark the occasion of Mining Month.
“First Nations have a critical role in British Columbia’s mining sector,” she said in a press release. “Our approach to natural resource development must be done in collaboration and partnership with the rightful owners of the land.”
Innocuous though it may sound, it's legally wrong, Taranis argues.
Even when aboriginal title is specifically proven -- and it has only been proven once, so far, in the case of the Tsilhqot'in First Nation -- it is the Crown that is ultimately is the rightful owners of the land, the company argues.
“Aboriginal title is essentially a burden – it sits on top of the Crown title," Joan Young, the McMillan LLP lawyer representing Taranis, told BIV News.
“It seems like the government is perhaps using a narrative that’s not in accordance with the law to hold it up. So we’ve been forced to go to court to get a judge to order the government to make a decision, and to do it on the basis of proper legal considerations and not something that is contrary to the laws of Canada."
The Thor project is an amalgamation of five historic mines. Taranis received a permit to obtain a bulk sampling for its Thor project, but the company says the Mines ministry has dragged its feet on issuing a notice of work permit for more than a year.
“This permit has taken 14 months,” Young said. “These things normally get issued in 30 days."
The permitting delays have affected the company’s ability to close financing, the company says.
In its application to the court, Taranis notes that it eventually became apparent that the reason for the delay was that the Knutaxa First Nation were objecting to the Thor project.
The Ktunaxa First Nation not only objected to exploration work, but declared a moratorium on its development – a moratorium the Ministry of Energy, Mines and Low Carbon Innovation referenced in a letter to Taranis.
Taranis was told about the Knutaxa's official opposition in April this year, and a month later, in observation of Mining Month, Osborne made her statement that referenced First Nations as rightful land owners.
Taranis argues that the minister's statement could colour decisions of permitting officers.
“The concern is that the minister has made public statements about rightful ownership of the land and things that are, from our client's perspective, not consistent with the law, and that would or could influence improperly how a decision is made about this permit," Young said.
In its judicial review application, Taranis is seeking a declaration from the court that Osborne’s statement that the First Nations are the rightful owners of the land are “contrary to the laws of British Columbia and Canada,” and that the chief permitting officer must not consider the minister’s remarks in making permitting decisions.
“There is no legal basis under the laws of British Columbia or Canada to hold First Nations as ‘the rightful owners of the land,' the company argues in its judicial review application. “It is the government that holds legal title to the land following the Crown’s assertion of sovereignty.
“Even where aboriginal title can be proven to exist it is considered a burden on the Crown and does not undermine the Crown sovereignty and underlying title to the land.”
