Raising the Stakes: Gitxaała Nation’s Legal Challenge Catalyzes Momentum for Mineral Tenure Reform in BC

West Coast Environmental Law
Author: Shawn Smith and Alexis Stoymenoff Guest Blogger

Between 2018 and 2020, the Province of British Columbia granted multiple mineral claims on Banks Island, in the heart of Gitxaała Nation’s territory, without consulting Gitxaała. Under BC’s current Mineral Tenure Act, virtually anyone can become a “free miner” and acquire mineral rights online for a nominal fee through an automated system – with no requirement for Indigenous consultation or consent, or even notification.

The problematic practice of granting mineral tenures without consent is not new. In fact, it’s very old – with roots that date back to the Gold Rush era in BC, when colonial laws were first established to assert power over the region’s abundant, resource-rich lands and waters. Miners, then as now were free to ‘stake’ mineral claims almost anywhere, giving mining priority over most other land uses in BC with far reaching consequences. The dispossession of land, theft of resource wealth, and attempted erasure of Indigenous governance authority that BC’s mineral tenure regime has inflicted on Indigenous peoples for over 160 years continues to be felt in the present day.

That is why Gitxaała launched a groundbreaking judicial review in October 2021, seeking to overturn the mineral claims in its territory, and challenging BC’s unjust free entry mineral ‘claim staking’ regime.

Gitxaała’s case argues that the failure to consult Gitxaała about potential adverse effects on their Aboriginal rights and title – which the courts have held includes mineral rights – is a breach of the Crown’s constitutional duties to Gitxaała, and does not align with standards of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), including the standard of “free, prior, informed consent.”

On December 15th and 16th, 2022, Justice Ross of the BC Supreme Court heard from a wide range of applicants seeking permission to intervene in this important legal challenge, which will be heard this April alongside a related legal challenge filed by the Ehattesaht First Nation. There were eight separate applications to intervene in Gitxaała’s case, together accounting for 19 different Indigenous nations, Indigenous organizations, human rights defenders, environmental and community groups, and mineral exploration interests.

The words of Sm’ooygit Nees Hiwaas (Matthew Hill) were felt throughout the courtroom as he shared a prayer in Sm’algyax to launch the intervenor application hearings – the first time, to our knowledge, that the BC Supreme Court has permitted this. The charged, anticipatory energy amongst the lawyers and observers reflected the far-reaching importance of this litigation.

On January 6th, Justice Ross granted leave to intervene to several parties seeking to make legal arguments against BC’s “free entry” mineral claim staking regime when the full case is heard. These intervenors will be the First Nations Leadership Council (FNLC), four individual Indigenous nations, six environmental and community groups, the Human Rights Commissioner for British Columbia and two mineral exploration businesses.. A coalition of other mining interests, including the Association for Mineral Exploration (AME), was also granted leave to intervene and will make arguments for the maintenance of the current free-entry system

The case is one to watch for a number of reasons, not least because it will be one of the first cases to interpret BC’s Declaration on the Rights of Indigenous Peoples Act (DRIPA). As an intervenor, the FNLC aims to bring an important perspective, having worked closely with the BC government to direct and develop DRIPA, and being actively engaged in its implementation.

At a press conference in December, Regional Chief Terry Teegee of the British Columbia Assembly of First Nations stated:

The relief sought by Gitxaała, if granted by the Court, would allow Indigenous nations in British Columbia to address [the negative cumulative impacts of BC’s mineral tenure regime] and move forward with our path of sovereignty and self-determination. Unfortunately, the legal representatives from the Province of BC have instructions to oppose the relief sought by Gitxaała Nation. This is a clear example that the Province of BC is trying to have it both ways, by making political commitments to reform the Mineral Tenure Act while fighting reform in the courtroom. In this era of the Declaration on the Rights of Indigenous Peoples Act, this is unacceptable.

The Indigenous nations intervening – Ts’kw’aylaxw First Nation, Nuxalk Nation, Gitanyow Hereditary Chiefs and Nak’azdli Whut’en First Nation – will provide the Court with their own unique perspective on the legal issues, arising from their on-the-ground experience with the adverse impacts of the mineral tenure regime.

These adverse impacts are wide-ranging, and affect Indigenous nations and communities across the province. For example, when mineral claims are granted, they can create major barriers for conservation initiatives such as Indigenous protected and conserved areas (IPCAs) because tenure holders must be compensated by the provincial government if provincial protected area creation prevents them from proceeding with mining activities.

Speaking to this, Naxginkw (Tara Marsden), representing the Gitanyow Hereditary Chiefs, stated:

The shell game the mining industry is playing with Indigenous lands and taxpayer dollars needs to be overhauled. In our case, we have been told that in order to protect our critical salmon spawning habitat, government would have to pay the tenure holders between $4 and $7 million in compensation. This regime of compensation is a significant barrier for government, and prevents them from protecting critical areas needed for biodiversity and climate resilience. While companies go mining for compensation, taxpayers end up footing the bill for costly litigation and resolution of land-based conflicts.

A coalition of non-governmental organizations and community groups will also be intervening in Gitxaała’s case. They plan to argue that the Court should consider the ways in which the mineral tenure regime negatively impacts many interests and communities – from fee simple land holders to local land use planning, to childrens’ health and conservation of sensitive watersheds – in crafting the remedy it grants.

Of the groups granted leave, there is only one intervenor that is generally aligned with the arguments that BC is making, and that is a coalition of mining industry associations consisting of the Association for Mineral Exploration British Columbia, the Mining Association of British Columbia, and the Prospectors and Developers Association of Canada. The mining coalition argues that the remedies that Gitxaała is seeking will negatively impact the mining industry.

However, an important counterpoint to the mining coalition’s argument is provided by two mining companies, First Tellurium Corp. and Kingston Geoscience Ltd., which have also been granted intervenor status. According to affidavits filed with the Court, these two companies are committed to obtaining free, prior and informed consent (FPIC) before conducting exploration activities in Indigenous territories, and they argue that BC’s free entry system rewards actors for ‘claim jumping’ using the automatic system over those who seek the consent of Indigenous peoples. Their arguments generally support the remedies Gitxaała is seeking in their case.

Multiple intervenors have also emphasized that this challenge to BC’s current mineral tenure regime does not mean they are opposed to mining in general – but that going forward, BC’s mining laws must be aligned with its commitments to Indigenous peoples.

As noted by Naxginkw (Tara Marsden):

Our application to intervene is not about stopping mining, or opposing all mining activities. We currently have multiple consent-based agreements with mining companies that are leading the much-needed change in their industry. These agreements are in places that are not as sensitive in terms of salmon habitat. A better process is possible. The provincial government can, at any time, stand down in this case, concede our evidence and avoid costly litigation that only favours those mining companies that want to see us stay in the colonial era rather than moving into the era of mutual consent.

Since the launch of Gitxaała’s case, the BC government has committed to modernize the Mineral Tenure Act in collaboration with First Nations and Indigenous organizations, in alignment with its DRIPA Action Plan. Mining reform advocates will be watching closely as these important issues are debated, both in the courts and in the Legislature.

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