Court begins to hear Gitxaała Nation’s landmark case against B.C.’s mineral claim staking regime

Three women lead a procession to the Vancouver Courthouse, holding the black, red and white flag of the Gitxaała Nation
April 11, 2023

Hearings in Gitxaała Nation’s landmark legal case began last week. Gitxaała hereditary and elected leaders, elders, and supporters walked into the courthouse on April 3, united “with one voice and in the Spirit of being of one heart,” as elected Chief Councillor Linda Innes described. “We owe it to our children, to those yet to be born within the Gitxaała Nation.”

“By giving away the mineral rights that are part of our territory, the Province has broken both our laws, and their own.” 

Sm’ooygit Nees Hiwaas (Gitxaała Hereditary Chief Matthew Hill)

Gitxaała Nation is asking for mineral claims in its territory to be quashed, the online mineral claim staking system to be suspended in its territory, and a declaration the Crown failed to consult with its leadership as required by B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA). Passed in 2019, the B.C. government has yet to deliver on its promises to implement DRIPA. This is the first case to look at how the act should be enforced, and could thus set a precedent for other First Nations. Read more about the case.

“Regrettably, the philosophies underlying the Doctrine of Discovery are alive and well in today’s B.C.’s mineral claims staking regime, a regime through which the Crown granted mineral rights to the respondents in this case through an automatic system, as if [Gitxaała], their inherent rights, their inherent title, their laws, did not exist,” said Jessica Clogg, Executive Director of West Coast Environmental Law, at a press conference to kick off the hearings. 

So far, the court has heard the arguments from Gitxaała Nation’s lawyers, as well as those of Ehattesaht Nation—the two cases were combined as they both take aim at the mineral tenure regime. 

Today, the court will hear from us and the other intervenors, including B.C.’s Human Rights Commissioner, a number of Indigenous nations and political organizations, and mineral exploration companies that support Indigenous peoples’ right to free, prior, and informed consent (FPIC). We’ll be speaking about the importance of reforming the Mineral Tenure Act to uphold Indigenous rights and arguing that the duty to consult exists continually from the earliest stages of establishing a mining interest, which is supported by industry best practice standards like the Initiative for Responsible Mining Assurance (IRMA). We’ll also be arguing that conservation and land use planning efforts may be affected if the court delays relief measures. For example, if Gitxaała wants to protect Banks Island from further mineral staking and exploration work, and the court agrees but provides for a delay, then “free miners” may stake more of the island and try to get those staked areas withheld from the protection sought by the First Nation.

“B.C.’s Mineral Tenure Act is the root cause of a host of problems. It disregards Indigenous rights and allows claims to be staked in almost anyone’s backyard, without their knowledge, much less consent. It exempts claims from land use planning requirements, ignores the voice of local governments, and makes the creation of protected areas much more difficult and more expensive. Gitxaała’s litigation presents an opportunity for the Province to respect the UN Declaration on the Rights of Indigenous Peoples, and to address these major problems for the benefit of local communities and the environment.” 

Jamie Kneen, Co-Chair of the BC Mining Law Reform network and National Program Co-Lead with MiningWatch Canada

Read the Gitxaała Nation’s press release

Read more from The Narwhal

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