Gitxaała Nation takes B.C. to court over lack of Indigenous consent in mining laws

·7 min read

Gitxaała Nation is taking the province to court for its failure to consult before granting mineral tenures on Gitxaała territory, calling into question the foundation of B.C.’s mining laws, which permit any individual or company to stake a claim without consulting or acquiring consent from Indigenous communities.

The B.C. Supreme Court litigation alleges the province is failing its duties to Indigenous communities by not aligning the principles of the United Nations Declaration on the Rights of Indigenous Peoples, which B.C. enacted into law in 2019, with its mineral tenure act.

“I don’t see how one can reconcile the sovereignty of Indigenous people with Canadian sovereignty, and proceed to basically dismantle their governance and their title system with a statute like this that doesn’t seek any type of consultation or consent or even notification before mineral interests are transferred,” Lisa Fong, legal counsel for Gitxaała, told The Narwhal in an interview.

Gavin Smith, lawyer with West Coast Environmental Law and part of the legal team, told The Narwhal this is the first time anyone has launched litigation of this kind.

“It hasn’t been tested in court,” he said in an interview. “The way that it will set legal precedent is it’s asking the court to interpret and decide [what happens] when B.C. is not upholding the [United Nations] Declaration.”

He added if the case is successful, it would put Gitxaała Nation in a position where it could “essentially force B.C. to live up to its obligations.”

“The mineral tenure act is the most obvious low-hanging fruit in terms of it being totally inconsistent with Indigenous Nations on Title and decision making,” Smith said.

Nikki Skuce, co-founder of the BC Mining Law Reform Network, agreed.

“The government has committed to making sure that our laws and regulations are consistent with the Declaration on the Rights of Indigenous Peoples and they want to promote B.C. as a responsible mining jurisdiction,” she said in an interview. “You can’t do that without this piece of legislation being updated.”

“It’s been a long time coming for us to get to this stage,” Sm’ooygit (Chief) Nees Hiwaas Matthew Hill told The Narwhal in an interview. “I speak about the sacredness of the land. Our people have occupied the land and reap the benefits of the land — only what we need. We’ve never over-harvested at any time. And we’re hoping to protect it for future generations.”

The court case, which Fong said she hopes will be reviewed early next year, will also seek to quash mineral tenures which were staked on Lax k’naga dzol (Banks Island) between 2018 and 2020. Banks Island, which Gitxaała refer to as their “bread basket,” is on B.C.’s northwest coast, south of the Skeena River estuary.

At a press conference following the announcement, elected Chief Councillor Linda Innes responded to a question posed by The Narwhal about whether Gitxaała has asked the province to revoke the claims.

“These claims occurred without Gitxaała’s knowledge so it has been impossible to have any discussion about revoking claims,” Innes said. “We have expressed issue with the tenure process before as well as raising issues with the history of bad mining practices within our territory.”

The claims, many of which were staked by Chris Paul and Oliver Friesen of Gold Lion Resources, effectively cut the island in half. The Narwhal reached out to Gold Lion for comment but did not receive a reply prior to publication.

Under B.C.’s current laws, mineral claims are automatically granted to anyone who registers a free-miner certificate with the province and pays $1.75 per hectare, which Fong and Smith noted is a key part of the litigation.

“The very act of automatically granting mineral tenure is inconsistent with the honour of the Crown, which is a constitutional principle about what the Crown is supposed to be meeting to uphold its obligations to Indigenous people,” Smith said.

He added if the judge assigned to the case agrees with Gitxaała that the province had a responsibility to consult before granting mineral claims, B.C. will have to reassess claims province-wide.

“It obviously has implications beyond just Gitxaała territory, because B.C. is issuing new mineral claims elsewhere.”

Critics of the system have called for legal reform for years and in the absence of those reforms Indigenous communities have started enacting their own laws. Nuxalk hereditary leadership recently evicted a mineral exploration company and this summer Gitanyow hereditary chiefs declared an Indigenous Protected Area on their territory to prevent mineral exploration from impacting a salmon watershed.

The Ministry of Energy, Mines and Low Carbon Innovation told The Narwhal in an emailed statement it couldn’t comment on matters before the court but said it had taken part in discussions on legal reform in 2018 and 2019.

“Conversations identified direct linkages between the mineral tenure system and modernized land use planning and the need for additional engagement,” a ministry spokesperson wrote.

Skuce said mineral claims are a barrier to communities and Nations moving forward with stewardship initiatives.

“It’s really clear that the mineral tenure act is inconsistent with [Indigenous] values, in terms of land-use planning and supporting conservation efforts and the like, which is being hampered by mineral claims.”

Chief Hill said this is not a new issue. Gitxaała first raised the issue with the province in the 1960s, when early mining operations on Banks Island, part of Hill’s house territory and the island on which he was raised, blocked important salmon streams.

Banks Island was the site of profound environmental damage in 2015, when provincial inspectors discovered the operators of Yellow Giant mine, a relatively small gold project Gitxaała opposed but the province approved, had been discharging toxic effluent into the forest, wetlands and streams.

“For me, hearing the stories and seeing devastation that’s been happening out there has been quite a painful experience,” Chief Hill said. “The damage is severe, it’s almost non-repairable. For a few years, our people couldn’t harvest their food in that area because of the tailings discharge, into the ocean, right into the harvest beds.”

A separate court case, between the province and two senior mining executives responsible for the pollution, is underway.

Fong said regardless of whether the Gitxaała Supreme Court case is successful, she’s hopeful it will bring awareness to the issue and instigate legal reform.

“If it’s successful on the unconstitutionality of the mineral tenure act for not providing for consultation, then the government will be forced to meet with Gitxaała and probably with other Nations, to consult on a statute that will actually meet their obligations,” she said.

She added the recent court ruling on the province’s failure to address cumulative impacts in Blueberry River First Nations territory could come into play, in terms of what would happen if the province is allowed to continue permitting mineral exploration on Indigenous territories without consultation or consent.

“I certainly think Blueberry is very relevant from the perspective of this is what would happen in terms of cumulative impacts,” she said. “It could happen with the mineral tenure act as it currently exists, and even with the mining act.”

Chief Hill stressed the importance of protecting the land, in the context of Gitxaała culture, noting the Nation is one of the oldest in the province.

“We are stewards of the land and we treasure it. The culture is very much still alive, and the resources are still valued.”

He said he hopes the province will respect Gitxaała law and uphold its obligations to Indigenous communities.

“I would like to see our people being sincerely consulted and an acknowledgement from the government that they’re going to respect this process … and respect our laws and seek our consent.”

Matt Simmons, Local Journalism Initiative Reporter, The Narwhal

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