B.C. First Nations Chiefs Celebrate
Mining Exploration Court Decision
The case was led by the Gitxaała Nation, with Gitanyow an intervener
Leaders from the Gitxaała and Gitanyow First Nations were celebrating a historic victory this week after the B.C. Supreme Court ruled the province's laws on mining exploration did not meet the Crown's duty to consult.

The court challenge targeted old laws that let exploration companies stake claims without prior consent, often for as low as $60 a claim. The ruled found that the duty to consult is triggered when a mining stake is claimed in the province.

For Naxginkw, sustainability director for the Gitanyow hereditary chiefs, the decision was a "mixed bag." There was relief on the duty to consult. But Naxginkw, also known as Tara Marsden, said there was disappointment at what she called the court's "really minimal interpretation" of the United Nations Declaration on the Rights of Indigenous Peoples and the Declaration on the Rights of Indigenous Peoples Act's legal weight on the law on other laws in the province.

Naxginkw also criticized court's permission to allow mineral exploration companies to continue operating under the old law for another 18 months while the province makes changes. Read the Vancouver Sun article.

Consultation Prior to Mineral Claims Staking – Part 3:
British Columbia Announces Interim Measures
On March 7, 2024, the Province of British Columbia released interim measures in response to the BC Supreme Court's ruling in Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680. The Province has suspended mining activities in the asserted traditional territories of Gitxaala Nation and Ehattesaht First Nation until 2029 and has indefinitely suspended the registration of new mineral claims in these areas.

Background
Following the release of the Gitxaala decision, we published an in-depth analysis of its importance. As part of its decision, the Court declined to reverse (or "quash") existing mineral claims in the asserted traditional territories. The Court also granted the Province 18 months to modify its system of granting mineral tenures to account for Indigenous consultation prior to the grant of claims. During the interim 18-month period, the Court permitted ongoing mineral exploration work and the registration of new mineral claims.

Read the full article by Kevin O'Callaghan and Nathan Surkan with Fasken Martineau DuMoulin LLP.

Government Uses Little Known Law to Freeze
Mining Rights Unless First Nations Consent
On March 6, 2024, one of the largest annual mineral exploration and mining conferences in the world ended in Toronto. The very next day, the BC government announced four Cabinet orders that upended various rights of prospectors and mineral developers in two parts of British Columbia.

The four orders were made under a little-known law called the Environment and Land Use Act. They prohibit placer and mineral claim staking on Banks Island and part of Vancouver Island, as well as restricting related mineral exploration activities. The BC Government indicated in a corresponding news release that it may amend the orders if affected parties could reach agreement with local First Nations.

No prior government has ever used these powers so broadly, or said openly that the restrictions may be removed if holders of such rights can reach agreement with First Nations.

While these specific orders are limited to only parts of BC and BC's mining laws, if government truly has the legal authority to make them under the Environment and Land Use Act, there is nothing that would preclude their future use in other areas of BC and other sectors. And one might reasonably expect some Indigenous groups will ask government to do exactly that. Read the full article by Robin M. Junger, Timothy John Murphy, Cory Kent, Joan M. Young and Sasa Jarvis with McMillan LLP.

Personal Liability for Director of Mining Company on Regulatory
Offence: BC Courts Remain Firm on Strict Liability
Recently, the BC Supreme Court issued its decision in R v Mossman, 2024 BCSC 443. The case involved two appeals from summary convictions under the Environmental Management Act and the Fisheries Act (collectively, the "Acts"). The underlying offences occurred at a gold mining site operated by a company near Prince Rupert, British Columbia.

The appeals relate to the liability of the director, president, and chief operating officer of the Company, and the designated 'mine manager' under the Mines Act. He was charged with several offences under the Acts, which the Court divided into three categories. Read the full article by Gavin Cameron and Kerry Kaukinen with Fasken Martineau DuMoulin LLP.

Ren v. Eastern Platinum Limited,
2023 BCSC 404 and 2023 BCSC 706
In these decisions, the Supreme Court of British Columbia granted an application for leave to commence a derivative action against the former CEO of Eastern Platinum Limited (EPL) framed in negligence and breach of fiduciary duty.

EPL, a B.C. public company, owned the right to conduct mining operations at a platinum and chrome mine in South Africa (Mine) through a subsidiary. The petitioner, Ms. Ren, a shareholder of EPL, alleges that the present and former directors of EPL acted negligently and in breach of their fiduciary duties by causing the company to enter into agreements with Union Goal Offshore Limited (Union Goal) for the exploitation of mine tailings at the Mine. Ms. Ren contends that EPL suffered loss as a result of the agreements and sought leave to commence a derivative action under s. 232 of the B.C. Business Corporations Act in EPL's name against the directors. Ms. Ren's initial draft claim named seven defendants and was based in negligence (against all directors) and breach of fiduciary duty (against Ms. Hu only). EPL opposed the application on the basis it was simply a different version of the same application that had been dismissed in 2538520 Ontario Ltd. v. Eastern Platinum Limited, 2019 BCSC 1446 (Hong Proceeding) and upheld by a majority of the Court of Appeal in 2020 BCCA 313, and, therefore, it was an abuse of process. In the alternative, EPL argued that Ms. Ren had not satisfied all statutory prerequisites to her application. Read the full article by Aidan Cameron and Lindsay Burgess with McCarthy Tétrault LLP.

Legislative, Procurement and Governmental
Updates Signal that British Columbia is Ripe
for Renewable Energy Development
Recent legislative, procurement and governmental updates, including BC Hydro's upcoming Call for Power and updates to the BC Clean Energy Act, will create increased opportunities for renewable energy development in the province.

Updates to Energy Objectives under the BC Clean Energy Act
On February 15, 2024, the Government of British Columbia announced updates to the energy objectives in the Clean Energy Act (British Columbia), with the intent of maximizing affordability and reducing carbon pollution in the province. These changes signal a current focus of the Government of British Columbia to spur renewable energy development within the province and align with other recent renewable energy initiatives that have been announced by provincial governments across the country.

Read the full article by Aaron Fransen, Lanette Wilkinson, Tara Watson, Parker Mckibbon and Kyle Hatton with Stikeman Elliott LLP.

Mineral Tenure Act Reform Advancing
The Province is advancing work to reform the Mineral Tenure Act (MTA) in alignment with the United Nations Declaration on the Rights of Indigenous Peoples with a clear process for co-operation and consultation with First Nations in British Columbia and engagement with industry and all interested parties.

"Our government is taking steps to acknowledge our past and working to address the consequences of colonial legislation and policies, which have had lasting effects on First Nations. By doing this together, we are building a better future on the land, in communities, and for people in British Columbia," said Josie Osborne, Minister of Energy, Mines and Low Carbon Innovation. "We are committed to the full transformation of B.C.'s mining regulatory system, including modernizing the Mineral Tenure Act, and this government-to-government work must be reflective of the shared interests and values of everyone who lives and works on these lands." Read the government news release.

Mining in the Courts, Vol. XIV
The 14th annual edition of Mining in the Courts provides a one-stop annual update on legal developments impacting the mining industry (available in English only). In addition to providing summaries of many of the most important cases, this edition contains articles with our insights on current legal trends and what we think the industry can expect to face in the coming year. Read the full article by Aidan Cameron, Val Lucas, Sarah Adler, François Alexandre Toupin and Dominique Amyot-Bilodeau with McCarthy Tétrault LLP.

BCUC Accepts Updated BC Hydro IRP, Which
Calls for 3,700 GWh of New Generation
The British Columbia Utilities Commission (BCUC) has accepted BC Hydro's Updated 2021 Integrated Resource Plan (IRP), which anticipates the need to acquire about 3,700 GWh of clean or renewable electricity.

The key priorities of BC Hydro's IRP are to reduce greenhouse gas emissions by focusing on non-polluting electricity sources, sustaining BC's low electricity rates, limiting land and water impacts, contributing to BC's reconciliation efforts with Indigenous peoples and supporting the growth of BC's economy.

In this plan, BC Hydro expects electricity demand to increase and proposes a combination of energy efficiency programs (called demand-side management) and energy purchases from independent power producers, including new contracts and renewal of existing contracts. Read the full article by Elizabeth Ingram in the Hydro Review.

BC Energy Regulator Announcements
The following BC Energy Regulator announcements were posted recently:

• IU 2024-04 – Fee, Levy and Security Regulation Updates
• TU 2024-03 – Program Expands to Include Dormant Facility & Pipeline Liability
• IU 2024-05 – New All Hazards Map

Visit the BC-ER website for more information.

Amendments to the Forest and Range
Practices Act Now in Force
On March 11, additional provisions of 2021 Bill 23, c. 37, the Forests Statutes Amendment Act, 2021 came into force by B.C. Reg. 57/2024. The Bill amended the Forest and Range Practices Act to allow the minister to designate areas of catastrophic damage due to wildfires or natural events, to establish plans for reforesting those areas and to grant relief or funding for establishing free growing stands.

Recent Forestry Legislation Changes
On April 1, amendments were made to forestry-related legislation, particularly the Forest Act and Forest and Range Practices Act, by 2023 Bill 41, c. 43, the Forests Statutes Amendment Act, 2023, which were brought into force by B.C. Reg. 62/2024.
The Forest Act was amended to provide greater discretion to decision-makers when issuing cutting permits and road permits, and authorizing them to request additional information in relation to the issuance of permits and during the term of the permits, as well as impose certain conditions on or refuse a permit. The Forest and Range Practices Act was amended to reflect the changes to the Forest Act and to modify the provisions for administrative penalties and orders for remedial work.

Quickscribe's early consolidations of the proposed 2019 Bill 21, c. 25 amendments to the Forest and Range Practices Act and the proposed 2021 Bill 23, c. 37 amendments to the Act have been updated to reflect the recent changes.

New BC Wildfire Service Open Fire Policy
The BC Wildfire Service has published a new policy on the use of open fire under sections 20 to 24 of the Wildfire Regulation, intended to provide guidance on requirements for the safe use of open fire, including fuel breaks, preventing open fires from becoming out of control, burn registration numbers and documenting extinguishment. Quickscribe Envirofor has BC Wildfire Services policies available, or the policy can be found on the BC government website.

Amendments Coming to the Environmental Management Act:
British Columbia to Introduce More Robust Regulation of the
Decommissioning and Closure of Industrial Facilities
In April 2022, the BC Ministry of Environment and Climate Change released a discussion paper on its Public Interest Bonding Strategy, an initiative aimed at ensuring that owners of large industrial projects – as opposed to taxpayers – pay for the full costs of environmental clean-up and reclamation, even if projects are abandoned. The strategy was implemented in part due to the recent instances of companies becoming unwilling or unable to complete their environmental clean-up and reclamation activities, highlighting the need to review how the Province approaches financial assurance.

The first phase of the strategy involves a review of financial assurance mechanisms under the Environmental Management Act and the Mines Act, with a focus on the foreseen clean-up and reclamation costs for existing active and new projects that pose a high environmental and financial risk. In the second phase, the unforeseen clean-up costs under a broader range of statutes, including the Land Act, Forest Act, and Environmental Assessment Act, will be reviewed with the aim of improving co-ordination of financial assurance across ministries. Read the full article by Kinsey Furniss and Adam R. Way with Harper Grey LLP.

BC Court of Appeal Confirms the Defence of Statutory Authority
Applies where Aboriginal Fishing Rights are Engaged
On February 26, 2024, the Court of Appeal for British Columbia (the "Court") issued its decision in Thomas v. Rio Tinto Alcan Inc., 2024 BCCA 62. The underlying trial dealt with claims of nuisance brought by the Saik'uz First Nation and the Stellat'en First Nation (collectively, the "Nechako Nations") against Rio Tinto Alcan Inc. ("RTA") as a result of its operation of the Kenney Dam, a government authorized project, on the Nechako River. A central issue considered by the Court on appeal was whether the defence of statutory authority was available to RTA to avoid liability. The Court concluded that the defence applied in this instance. Read the full article by Dani Bryant, Samuel Geisterfer and Dustin Horvat with Fasken Martineau DuMoulin LLP.

Federal Impact Assessment in Flux: The Implications
of the Supreme Court's Decision in the
Reference re Impact Assessment Act
On October 13, 2023, Canada's Supreme Court found core components of the federal Impact Assessment Act ("IAA") to be unconstitutional. This is the first time a majority of the Supreme Court has declared any federal environmental legislation unconstitutional in four decades.

Although the final impacts of this decision are far from settled, there are some clear implications for proponents of major energy, infrastructure and mining projects in Canada going into 2024. Read the full article by Liane Langstaff, Stacy Porter and Maggie Sainty with Gowling WLG.

Environmental Appeal Board Decisions
The following Environmental Appeal Board decision was made recently:

Environmental Management Act

• 518235 BC Ltd. dba Xausa Family Trust v. Director, Environmental Management Act [Dismissal Order – Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.

Forest Appeals Commission Decisions
The following Forest Appeals Commission decision was made recently:

Wildfire Act

• Canadian Forest Products Ltd. v. Government of British Columbia [Final Decision – Appeal Dismissed in Part]

Visit the Forest Appeals Commission website for more information.

Permanent Disability Evaluation Schedule – Range of Motion  
Method and Disabilities of the Spine
from WorkSafeBC:
Our Policy, Regulation and Research Department (PRRD) is releasing a discussion paper on the Permanent Disability Evaluation Schedule – Range of Motion Method and Disabilities of the Spine to stakeholders for comment. Following concerns raised by stakeholders regarding the reliability and validity of the range of motion (ROM) method for measuring permanent disabilities involving the spine, a systematic review on the appropriateness of the ROM method and other diagnostic approaches was undertaken. Read the full WorkSafeBC news release. 

National Safety Council Releases New   
Opioid Prevention Initiatives
Thanks to the National Safety Council (NSC), employers now have more resources that can help them address the issue of opioid misuse in the workplace. The nonprofit has launched several new initiatives to combat overdose in the workplace. "Workplace overdose deaths are occurring at devastating rates, and we know more can be done to save lives,” said Lorraine Martin, president and CEO of the NSC. “By providing essential tools, resources, and education, we can empower workplaces to be prepared, resilient, and ultimately save lives. We implore employers to join NSC in stocking these medications at all worksites." Read the full article by Jim Wilson with Canadian Occupational Safety.

OHSR Guidelines Updated (March 14):
from Worksafe BC:
The following guidelines were revised:

• Part 5 Chemical Agents and Biological Agents
  G5.48-5 Welding fumes
• Part 12 Tools, Machinery and Equipment
  G12.124 Respiratory protection during specific short duration welding, burning, or similar operations and during emergency work

New and revised guidelines are posted for a 60-day preliminary period, during which time the stakeholder community may comment and request revisions. Visit Worksafe BC for these and other guideline updates.

Public Consultation on the Permanent Disability Evaluation Schedule –
Range of Motion Method and Disabilities of the Spine
from WorkSafe BC
Following concerns raised by stakeholders about the range of motion (ROM) method for measuring permanent disabilities involving the spine, a systematic review on the appropriateness of the ROM method and other diagnostic approaches was undertaken. Overall, the systematic review found that all assessment methods were weak, and that there was no preference for one instrument over another. This consultation is to determine whether this issue should remain on the current workplan. Our Policy, Regulation and Research Department is releasing a discussion paper on the Permanent Disability Evaluation Schedule – Range of Motion Method and Disabilities of the Spine, for public consultation. You’re invited to provide feedback until 4:30 p.m. on Friday, April 26, 2024.

BOD Decision: Cancer as a Compensable Consequence
from WorkSafe BC:
On February 6, 2024, WorkSafeBC’s Board of Directors approved changes to Item C3-22.40, Compensable Consequences — Certain Diseases and Conditions, in the Rehabilitation Services & Claims Manual, Volume II. Amendments were made to policy on cancer as a compensable consequence to reflect current medical and scientific literature. The amended policy applies to all decisions made on or after June 1, 2024, respecting claims for injuries occurring on or after January 1, 2014. You can also review the complete Resolution.

Crane Safety Improvements
Needed in British Columbia
In the wake of a series of incidents involving tower cranes in British Columbia, the state of crane safety in the province has come under intense scrutiny. "When we look at the recent spate of unfortunate events relating to tower cranes, they are extremely concerning," says Clinton Connell, executive director of BC Crane Safety. There were two incidents within four days in January, and fortunately nobody was hurt. But a third incident in February caused the death of 41-year-old mother of two Yuridia Flores. A rally was held on Friday [March 15] calling for justice and better safety conditions. Read the full article by Shane Mercer with Canadian Occupational Health & Safety.