Tahltan deal may set precedent for mining permits: Indigenous law specialist

Geoffrey Moyse, a lawyer who specializes in Canadian Aboriginal law, constitutional law and public law—including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)—wrote in a recent commentary for the Fraser Institute, a pro-market public policy think tank, that the Tahltan Nation’s recent agreement with Skeena Metals over the Eskay Creek project illustrates how British Columbia’s UNDRIP-aligned policies are changing the terms of mining deals.

Moyse described the Tahltan–Skeena arrangement as a “consent agreement” enabled by B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA). He said the pact covers a broad consent area that includes some of Canada’s richest gold and silver deposits and argued the province’s approach treats Tahltan claims as ownership rights requiring consent for resource projects.

The agreement supports plans to restart the Eskay Creek mine in the Golden Triangle. Moyse cited figures for capital costs, projected Crown revenue and financial commitments between Skeena and the Tahltan — including up-front and ongoing payments, plus contracting and wages — and said those amounts, if accurate, represent unusually large transfers to a relatively small Indigenous population.

Moyse framed the deal as an early example of a “pay to play” dynamic under DRIPA’s section 7, saying the province’s adoption of certain UNDRIP provisions has established a new negotiating baseline. He contrasted that policy shift with Canadian constitutional law on Aboriginal title, noting courts require proof of regular, exclusive occupation dating to 1846 to establish title — a legal standard that differs from UNDRIP’s broader language on territorial rights.

He emphasized that, absent a court declaration of Aboriginal title, Canadian constitutional law does not require governments to obtain First Nations’ consent for activities on provincial lands. By explicitly adopting UNDRIP articles, Moyse argued, B.C. has effectively committed itself to seeking consent and negotiating terms with any First Nation asserting a territorial interest, potentially creating higher costs and new conditions for mining proponents.

Moyse also questioned how demographic and historical factors align with legal tests for title, noting the Tahltan’s large claimed territory and the community’s population distribution in his critique.

Industry analysts warn the development could reshape project economics: mining firms operating in jurisdictions that adopt UNDRIP-aligned policies may face larger negotiated benefit packages, extended approval timelines and higher costs tied to consent-based agreements, affecting investment decisions in resource-rich regions.

For more information, please visit www.FraserInstitute.org