No more free entry?: A legal challenge by two First Nations threatens BC’s mineral claim system. – by CBA National/ABC National – February 27, 2023)

It all used to be so simple. Way back in the Wild West days of mineral exploration in Canada, prospectors searching for surface signs of gold, silver or copper would cut down trees at four corners of a small plot to “stake” a claim. All a claim-jumper had to do was knock down the stumps.

It’s harder now — many jurisdictions have moved their claims online, making claim-jumping much less likely. But the basic model of “open entry” underlying exploration rights — the model that allows virtually anyone to stake an exploration claim simply by clicking on a map and paying a fee — remains the dominant model for mining regulation in Canada. In British Columbia, it’s under attack.

In April, the B.C. Supreme Court will hear a challenge to the province’s free-entry mineral tenure system that could send tremors throughout Canada’s mining sector. The Gitxaała and Ehattesaht First Nations launched the challenge against the B.C. government; they argue the free-entry system is unconstitutional because it violates the government’s “duty to consult” with First Nations by allowing exploration without prior consultation.

“The claims system allows anyone to point at a map and make an exploration claim without interacting at all with the Crown or First Nations,” said Merle Alexander, principal lawyer at Miller Titerle in Victoria and a member of Kitasoo Xai’xais First Nation.

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