The Northern Miner, first published in 1915, during the Cobalt Silver Rush, is considered Canada’s leading authority on the mining industry.
Based in Vancouver, Robin M. Junger is co-chair of McMillan LLP’s aborginal and environmental practices, and co-chair of its oil and gas practice in B.C. Brent Ryan is a student-at-law at McMillan.
The recent decision of the Supreme Court of Canada in Tsilhqot’in v. B.C. has received a great deal of attention and has caused people to ask some important questions. Nowhere has this been more so than in the mining sector. We will address some of those questions.
Does aboriginal title include mineral rights? The law is not completely settled on this point.
In Delgamuukw v B.C. in 1997, then Chief Justice Lamer, when explaining that the content of aboriginal title is not restricted to practices, customs and traditions which are integral to distinctive aboriginal cultures, stated:
122 The [Indian Oil and Gas Act] presumes that the aboriginal interest in reserve land includes mineral rights, a point which this Court unanimously accepted with respect to the Indian Act in Apsassin v. Canada (Department of Indian Affairs & Northern Development) in 1995. On the basis of Guerin, aboriginal title also encompass mineral rights, and lands held pursuant to aboriginal title should be capable of exploitation in the same way, which is certainly not a traditional use for those lands.
This was cited in a decision by the Yukon Court of Appeal in Ross River Dena Council v Yukon in 2012 (a duty to consult case, not a title case) where the court stated:
32 … Aboriginal title includes mineral rights (see Delgamuukw v. B.C. at para. 122). In transferring mineral rights to quartz mining claim holders, the Crown engages in conduct that is inconsistent with the recognition of Aboriginal title.
While these statements may appear conclusive on their face, it is important to note that they are not necessarily settled law. In the case of paragraph 122 of Delgamuukw, this is the only mention of mineral rights and title, and it comes from a decision written by only three judges of the court, concurred in by one other. Further, it is not the basis upon which the court made its decision, and therefore is considered non-binding obiter dicta.
While one might argue that obiter dicta of the Supreme Court of Canada can and should be given considerable weight, it is equally important to note that in this developing area of law, brief comments made in passing by a court should not be determinative of the resulting legal order. A perfect example of this is the fact that in the Tsilhqot’in decision the Supreme Court of Canada completely divorced itself from its prior statements concerning the division of powers as between provincial and federal governments when it comes to aboriginal rights (including title). In Delgamuukw then Chief Justice Lamer had said this at paragraph 180:
It follows that aboriginal rights are part of the core of Indianness at the heart of s. 91(24).
But in Tsilhqot’in, the court easily dismissed the above, saying at paragraph 135:
While no case has held that Aboriginal rights, such as Aboriginal title to land, fall at the core of the federal power under s. 91(24), this has been stated in obiter dicta.
Further, the court in Tsilhqot’in did not address the issue of whether title includes ownership of mineral rights. But it did say at paragraph 73 that aboriginal title “confers ownership rights similar to those associated with fee simple” and in B.C., fee simple land owners do not typically own any undersurface rights.
For the rest of this article, click here: http://www.northernminer.com/news/commentary-what-does-aboriginal-title-mean-for-mining-in-bc/1003159848/rq0wMrp3vyWrlxu0q82vM20/?ref=enews_NM&utm_source=NM&utm_medium=email&utm_campaign=NM-EN07162014