Podcast Episode #2: The Gitxaała v BC Case w/ Gavin Smith

April 10, 2024

Featured image credit: Marty Clemens / The Narwhal.

Gavin Smith is a staff lawyer with West Coast Environmental Law (WCEL). Gavin’s work with WCEL has included fighting against the Enbridge Northern Gateway pipelines and tankers proposal, the passage and implementation of BC’s new Environmental Assessment Act, and supporting Indigenous Nations to revitalize their own laws. Gavin serves on the Gitxaała First Nation’s legal team.

You can listen to audio of the podcast episode here:

The interview transcript is below.


Umair Muhammad, Gavin Smith

Umair Muhammad

Before we get into the heart of our discussion, do you maybe just want to take a few minutes to tell us a little bit about West Coast Environmental Law and just a bit about its work and its history?

Gavin Smith

Sure. West Coast environmental law has been around since 1974, and is an environmental law charity that is focused really on changing the legal landscape. That has involved a lot of work over the years on provincial and federal law reform. We also provide summary legal advice on environmental issues to communities and individuals in British Columbia. And a large part of our work has also been supporting indigenous nations in upholding their own laws related to land, air, and water in their territory. Since 2016, that has taken the shape of what’s called the RELAW program or “Revitalizing Indigenous Law for Land, Air, and Water.” And I’ve been a staff lawyer at West Coast for about, oh, gosh, 12 years, 11 years now—something like that.

Umair Muhammad

And one of the things you guys work on is tenure reform in BC. What does that term mean, and why is it important?

Gavin Smith

Yeah. So when we talk about tenure reform, specifically, in this case, we’re talking about mineral tenure reform. But tenures are the legal tool by which interests in resources are granted from the crown under crown law to, usually, companies to carry out resource extraction. And so the particular focus of our recent work has been in mineral tenure form which is governed in British Columbia under the Mineral Tenure Act. And that is basically the law through which mineral explorationists, mineral exploration interests, acquire the rights to minerals—as well as the right to conduct certain exploration activities that form the foundation for potential future mining activities and the development of mines on that tenure.

Umair Muhammad

The other big area for tenure reform would be logging?

Gavin Smith

Exactly. So I mean, there’s also oil and gas tenures—it’s basically any purported crown ownership of resources that is granted to third parties.

Umair Muhammad

That’s good for background. And so let’s talk about the court case: Gitxaała v British Columbia. So what prompted the Gitxaała First Nation to bring forward their legal challenge against BC’s mineral claims system?

Gavin Smith

Yes, to answer that question, I’ll start by going way back. So there’s an immediate context for why Gitxaała brought the case which I’ll get to, but the long story is really, the Mineral Tenure Act and its predecessors have been one of the foremost tools of colonization in the province of BC. And so even before British Columbia was a province—when it was still a colony—it enacted what’s called the Gold Fields Act of 1859, focused particularly on gold. As you might imagine, at the time, it was the gold rush in BC. 

BC was concerned about American miners coming up, particularly along the Fraser, and the threats to British sovereignty that were perceived from those activities. So they used regulation of mining—and gold mining, in particular—as a primary tool to assert the authority of the British Crown over what is now known as British Columbia. So the Gold Fields Act of 1859 introduced many of the terms and concepts that are still present in the Mineral Tenure Act today, for example, a Free Miner Certificate, which is what are called “Free Miners” still get in BC. 

It’s what gives you the right to call yourself a “Free Miner.” And that’s what allows you to stake mineral claims. And importantly, the Gold Fields Act, it used the term “wastelands of the Crown”—was the actual legal term that was used in there. And so it’s really based on the idea that these are lands belonging to no one to which the Crown is claiming its own rights and distributing those rights to third parties—including at that time, American gold miners who then had to submit to Crown regulation. And it was a way of, you know, asserting British authority over the territories. 

The reason that I go all the way back there is that it’s really important context for everything that has happened since in relation to mineral tenures which are granted on an automatic basis. Now it happens online, but it used to be that you would actually literally go and put stakes in the ground. Hence the term “staking a claim.” And you would then go and you would record that claim. So there was no decision-making per se, in that Act, you just went and put some stakes in the ground. And then you got that recorded by the Crown and it was yours. 

And the purpose was really to encourage mineral exploration. But it also had a second purpose and an effect of dispossessing indigenous peoples of their rights in their own territory. So, you know, once those claims were staked, the rights to minerals in that area belong to the claim holders, bt but also the rights to conduct mineral exploration activities. That’s evolved over time. But the basic structure of that regime still exists under the Mineral Tenure Act. 

It’s now done online. So rather than putting stakes in the ground, they’re obtaining interests on a map. But the actual underlying effect is the same—that those rights are acquired automatically without any role for indigenous nations in their own territory. So that’s the bigger picture context, I would say.

Umair Muhammad

You know, while researching for this discussion, I found a YouTube video called “Acquire a BC gold claim. Easy!” That’s the title.

Gavin Smith

And it is!

Umair Muhammad

He goes through the steps of buying a cell and yeah, it’s very easy.

Gavin Smith

Yep. And well, you know, it’s interesting. We’re getting ahead of things a bit now, but when Gitxaała launched the litigation that they did, they put an affidavit—which is, sort of, written evidence in the case that was to demonstrate to the court how the [mineral staking] process worked—a lawyer who had never engaged in mineral exploration before started from scratch, and explained the steps that he took to become a free miner: to go online and to purchase a mineral claim on Gitxaała territory, which was actually free for him to do because he was a senior, so he didn’t even have to pay any of the fees to get a Free Miner Certificate. 

He had to then pay for the mineral claim. But it basically took him about three days of his time, and it was all done online. And he had no prior experience with mineral exploration at all. So it is really a very straightforward process. 

So anyway, with all of that said in that context, for Gitxaała specifically, the mineral claims that they challenged were all on Banks Island, which is part of the heart of Gitxaała territory. And there’s a pretty awful story of what’s called the Banks Island Yellow Giant Gold mine, which resulted from mineral tenures that were acquired without Gitxaała knowledge, or obviously consent—given they didn’t know about them. 

And then, despite countless objections, mineral exploration, and then mining activities were approved on Lax k’naga dzol, or  Banks Island, resulting in the Yellow Giant Gold mine—which was approved in 2014, started operations in 2015. It almost immediately started illegally discharging waste into an old mine shaft, basically, which then leaked out into the environment, then failed to report that. And it was basically through a whistleblower that the province eventually found out about it. 

The mine, you know, barely a year into operation was issued a stop-work order because of violations. The company then went bankrupt. And Gitxaała has been left holding the bag. This contaminated site, effectively, that still has mine infrastructure on it, that they never consented to, and in fact, actively opposed. And while they were dealing with the fallout from all of this—which was the stop-work order, and then the bankruptcy in 2016—just within a couple of years of that they learned that a bunch of mineral tenures had been registered on Banks Island again, without even their knowledge or consent. 

They found out about it through someone who happened to check online. And it was really the last straw where they were determined to make sure that the groundwork for this type of activity, causing harm without their consent, never happened again. And so they determined to launch a legal challenge to those specific mineral claims on Banks Island that were granted between 2018 and 2020.

Umair Muhammad

So the challenge was launched, the court heard the case, and I reached a decision. So—we’re skipping a few steps, but we may as well—what was that decision?

Gavin Smith

Sure. So the court found in September 2023 that there is a duty to consult owed by the Crown to First Nations including Gitxaała before granting mineral claims in their territory and that the Crown was breaching that duty. It issued a declaration to that effect. It did suspend that declaration for 18 months, which means basically, it’s paused. So it exists but has no legal effect yet. It will come into effect in 18 months. And as a result of that suspension, the court didn’t quash or set aside the specific mineral claims that led to the challenge, nor did it issue an injunction against further automatic mineral claims in Gitxaała’s territories. 

And so Gitxaała has launched a partial appeal of those aspects of the decision that left those tenures in place, and that refuse to stop the harm in the meantime. While all parties have accepted—or they’ve elected not to appeal—the actual declaration of the duty to consult. So that declaration stands, that the BC government now must consult indigenous nations before granting mineral claims.

Umair Muhammad

To me that seems quite momentous. Could you elaborate on the importance of the ruling?

Gavin Smith

For sure. So it is a major win. Like many legal victories, it’s nuanced. And there are some pieces that were not victories, which we can perhaps talk about later. But it’s really important to emphasize: this has been decades and decades of advocacy and work by indigenous nations, by environmental groups to try and get the system changed with, I would say, virtually no progress. There were some consultations or engagements launched by BC in 2017 to 2019, about considering mineral tenure act reform that didn’t go anywhere. 

But this has been, you know, just a constant drumbeat from indigenous nations for many, many years—that this system is a total violation of their rights and needs to be changed. And successive provincial governments have done nothing about it. And so this declaration from the court is momentous in that it will require a new mineral tenure regime, after many, many years of advocacy to bring about that change. And that is a significant win.

Umair Muhammad

I guess we’ll see what the nature of that regime will be. But reading through some of the documents and the judges decision and, of course, the brief that you guys prepared as well—there was a fair bit of discussion about the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), as well as BC’s Declaration on the Rights of Indigenous Peoples Act (DRIPA). 

Could you discuss how these frameworks influenced the court’s decision? And what this might mean for their application and in future legal challenges? And maybe this is the part that you’re saying didn’t it didn’t go so well.

Gavin Smith

Yeah, this would be what I was getting at with the—like many legal wins, they’re nuanced, and you don’t win on everything. This was a really significant aspect of the decision. And I will say a significant aspect of the case for Gitxaała as well. So as many will know, the BC government passed legislation, the Declaration on the Rights of Indigenous Peoples Act (DRIPA) in 2019, explicitly affirming that the UN Declaration applies to the laws of BC. 

And that the BC government has a statutory duty to take all measures necessary to ensure that its laws are aligned with the UN Declaration. The federal government, I should add, has passed substantially similar legislation in 2021. Some of the wording is literally identical. 

And this was really the first case to test, in a substantive way, what does that mean? So when we’re talking about the duty to consult, what influence does that legislation have on the BC government’s duty to carry out consultation in a manner that is upholding UNDRIP? And also, what does the statutory duty on BC to take all measures necessary to align its laws with UNDRIP mean when you have a nation—in this case Gitxaała—saying this particular law, the Mineral Tenure Act, and the decisions that you’re making under it is misaligned with UNDRIP?

And so two of the key—and, I would say, this is important for the mineral tenure aspects of it. It also obviously has a broader importance because it relates to what legal interpretations and applications and changes UNDRIP and the Declaration on the Rights of Indigenous Peoples Act are going to have on other issues going forward as well. 

And so how that was handled by the BC Supreme Court in its decision was: it said a few things. One of the things that it said was the affirmation—I’ll just call it DRIPA, it’s the shorthand for Declaration on the Rights of Indigenous Peoples ACT—that the UN Declaration applies to the laws of BC is effectively a purpose statement that doesn’t have substantive effects on the law. So it’s meant to be this court’s interpretation, it’s meant to be about how the court looks at and interprets UNDRIP. 

But it doesn’t actually give the UN Declaration any binding implications or impose any obligations in terms of how to interpret and apply the UN declaration in British Columbia. So that’s one of the things that said, you know, it remains an entirely non-binding instrument was, I think, almost the exact wording that the court used. And then the second thing it said was—it was in relation to this connected question about what is the statutory obligation on BC to take all measures necessary to align a clause with the UN Declaration mean? Is it enforceable? 

Or is it effectively a commitment to a political process that BC deals with through reporting to the legislature through action plans? The court found that DRIPA—the law did not intend for the courts to wade in and determine if a law was inconsistent, for the purposes of engaging the Crown’s obligation to take all measures necessary to align a law. And that was what Gitxaała was seeking. Gitxaała is seeking a declaration from the Court that said, this specific regime, the mineral regime is, inconsistent with UNDRIP. And the court basically said, courts aren’t going to make those declarations. That’s not to be—that’s not a matter to be addressed by the court. 

That’s to be addressed through engagement between indigenous peoples and the Crown. The significant problem—certainly from Gitxaała perspective—is there’s no accountability to BC in any legal sense for that duty. Normally, when you have a law—lawyers say laws are meant to be remedial: they’re supposed to be something you can do that those rights actually mean something and can be enforced. Unfortunately, the result of the court’s decision is that with respect to determining if a law is consistent with UNDRIP or not, you can’t do that. You can’t go to the court about it.

Umair Muhammad

And I also noticed that a range of intervenors, including other indigenous nations—there was the BC Human Rights Commission and Environmental groups like BCMLR, you know, that joined the case to support Gitxaała. So what, do you think, of this broad coalition of support? What does this signify for the case and the movement for mining reform in BC?

Gavin Smith

Yeah, it signifies two things I would say. One, is it underlines that a turning point has been reached with regards to the mineral tenure regime specifically—where there’s just such a critical mass of indigenous nations, human rights organizations, environmental organizations, saying the system absolutely must change that. It is, I think, undeniable at this point that there needs to be significant repeal and replacement and overhaul of that system. 

And I think that that really showed up in the many intervenors who made arguments indicating that they too had experienced the same kind of harms as a result of this and made varying various legal arguments about why there was a duty that was being breached. So that’s one significant aspect. 

The other comes back to what we were just talking about: about the UN Declaration and DRIPA. And that is the question and, in my view, the legal requirement of application of UNDRIP to the laws of BC and Canada is a rapidly evolving area of the law. These are recent pieces of legislation that were passed. And, you know, the BC Human Rights Commissioner, First Nations Leadership Council, they care very deeply about ensuring that the UN Declaration and all of its aspects is being upheld and applied and that there’s legal accountability in doing so. 

So in addition to strong alignment on those mineral tenure issues, there was really a multitude of voices that were saying this is a game-changing thing that we have legislation that is affirming the application of UNDRIP. And so I will chase that by adding, you know, we had this unfortunate decision from the BC Supreme Court in the sense of what it said about the UN Declaration not having any sort of substantive impacts on the law. But that was immediately followed by two other decisions in different jurisdictions that said different things. 

So just a month after Gitxaała’s decision, there was a decision called Montour from the Quebec Superior Court—which basically found the opposite, I would say, of what the court found in Gitxaała’s case. That case was looking at the federal act, which as I mentioned, is very similar in wording to BC’s act. And what the court found there is that the legislative affirmation of UNDRIP’s application engages what’s called a “presumption of conformity” with UNDRIP. 

So that means that courts should be preferring interpretations of the law—and, you know, statutory decision makers as well, who are making decisions under the law—should be preferring and applying interpretations of the law that are consistent and provide a level of protection at least as great as UNDRIP. So that’s almost the flipside of the coin of what happened in Gitxaała’s case. 

But it shows how rapidly evolving this area of the law is. You’ve got two decisions within a month of each other that are, I would say, inconsistent with each other and will need to be—as this proceeds up to the higher courts—there will need to be a ruling that finds a common statement of what these laws actually mean. 

And then just last week, the Supreme Court of Canada, Canada’s highest court—it was in a reference about indigenous child and family services legislation—explicitly stated that as a result of the federal UN Declaration legislation that UNDRIP has now been incorporated into the domestic “positive law” of the country is the word that it used. So it uses very strong language.

UNDRIP is now part of the domestic law in Canada. Of course, it didn’t have to address in that case, what specifically does that mean? But it’s sending a really strong signal. I think that this is not just, you know, nice political words, this has a legal impact. So I think we will continue to see, including through the appeals and countless cases, and I think, in other cases, this issue of ensuring that it means something that we’ve affirmed legislatively, that the UN Declaration applies, ensuring that it has legal meaning.

Umair Muhammad

To follow up on that, do you know of any other similar challenges that are on the horizon or ongoing at the moment that could further shape this issue?

Gavin Smith

Yes. So there are those two cases that I just mentioned—are both very significant in that regard. The Monture decision out of Quebec, that I mentioned, first, I believe, is under appeal. So that will also be addressed by the Quebec Court of Appeal. And, of course, the reference from the Supreme Court of Canada, it won’t be appealed, because they’re the highest court, but it sets in place a lot of important frameworks and statements that are going to be flushed out in other decisions. So what does it actually mean on the ground?

Umair Muhammad

And so getting back to the Gitxaała case, the court gave BC 18 months to design a new mineral staking regime that incorporates indigenous consultation. Are you able to anticipate what this might mean for mining in BC?

Gavin Smith

Yeah, so it’s a yes and no. I guess the “no” part is because the regime will be—well, has to be, under the declaration—co-designed with indigenous peoples. As to the actual shape of what it’ll practically look like on the ground is to be determined. However, the principles or requirements that it needs to be meeting, I think, are pretty clear. 

And so some of the examples are—I mean, first off, the practice of granting rights to minerals automatically is gone. Like there’s just there’s no way that that continues to exist. But if we’re talking about a regime that is aligned with the UN Declaration, what that actually means is shifting to recognition of indigenous nations as decision makers in relation to these issues. 

And so creating structures whereby there’s a pre-decision system—where mining interests can get priority among themselves, but they don’t actually get any rights to minerals. They don’t get rights on the ground to do exploration without the free prior and informed consent of indigenous nations. 

I think ideally, what that looks like is, rather than a case-by-case basis—is setting up structures that encourage and implement land-based decision-making. So, for example, “go zones” and “no-go zones.” Or, you know, red, yellow, green light areas—whatever nations want that to look like. To be making some decisions in advance about here’s where you definitely can’t go. And then here’s where you can go if you meet these types of conditions, and have that certainty up front. 

So I actually believe that UNDRIP-aligned reform is not only an opportunity to ensure respect for inherent indigenous rights or decision making, I think it will result in better-decision making generally. Because the problem for many mineral exploration companies now is, you know, they get these mineral claims which grant them rights typically without knowledge of the nation concerned. And they’ve immediately established, they’ve got off on the wrong foot. 

Even for nations that may be considering mining, they certainly aren’t going to be welcoming their rights to those minerals being granted to third parties without their knowledge. And without those types of agreements and alignment, it’s gonna be very difficult for mineral exploration interests to actually proceed. And so I think, you know, recognizing the reality that we are in this UN Declaration-era now, and that includes respect for indigenous decision-making, means a shift in business models for mineral exploration interests to be approaching indigenous nations upfront.

And for those that are interested, you know, pursuing partnerships or whatever structure nations and those exploration interests want to pursue. But also recognizing that some nations are going to say no, or they’re going to say no, in some places, and that’s going to have to be respected. 

So I actually think in the long term, it’ll be of a benefit to not only to nations, but also to mineral exploration interests—that aren’t going to be acquiring interests that they effectively can’t actually develop, because nations are going to take them to court or there’s going to be blockades on the land. Or whatever it is that nations are going to do to uphold their own legal regime in that regard.

Umair Muhammad

So in wrapping up this interview, I’m wondering if I can ask you a personal question. You mentioned that you’ve been with West Coast Environmental Law for more than a decade. And you know, you’ve worked on this case, I’m sure you’ve worked on other cases where you’ve supported indigenous nations to assert their rights—I’d want to ask you to reflect on what that journey has been like. And also, what lessons do you think can be drawn from your experience for other environmental lawyers as well as activists?

Gavin Smith

One observation I would make, having been working on these issues for probably about 15 years is, there is a sea change happening, I think, with regard to both legal and broader societal recognition of the impacts of colonialism on indigenous peoples. But also the inherent laws and legal orders of indigenous nations, their right and ability and long-standing practice to make their own decisions according to their own unique cultural and legal frameworks. You know, when I went to law school, in one of my first-year classes, we got a draft of this book called Canada’s Indigenous Constitution by John Burrows, an indigenous legal scholar who some will be familiar with. 

And in an academic context, these discussions around indigenous laws being real and treating them as laws were sort of cutting edge in a law school to be talking about those kinds of things. And I would say, in the last 15 years or so, it’s now become very common for and I think accepted among many that indigenous laws are law. They are real. Indigenous nations have been operating according to them for centuries, and they’ve been deeply impacted by colonialism, but they continue to exist and they are evolving to meet the new challenges of the era that we live in. 

And I think that broader societal recognition of that fact that Indigenous peoples have always known is really significant, and I’m hopeful that it will open up more political and legal space for new ways of doing things and new ways of making decisions that actually recognize those rights on the ground. And I would say that is where we continue to see challenges—the the rhetoric is there now, the rhetoric of recognition of indigenous law. But there are many entrenched interests that would be very happy to say those words and not actually have to change anything. And so now, it’s about translating that rhetoric into action.

Umair Muhammad

You didn’t capture the second part of my question. I don’t know if you want to.

Gavin Smith

So the second part of your question being sort of thoughts for, you know, activists and lawyers working in this field? Yeah. Yeah. 

I guess I can only offer my own personal reflections, which have been, I guess, starting from the beginner’s mind always. As a white guy coming to work—and trained in Canadian laws and Crown legal orders—coming to support indigenous nations has been a continuing process of recognizing what I don’t know, and being willing to try to be a continuing learner. And so, you know, not assuming that I have the answers. And I think what has been really, let’s say, beautiful and empowering for me about that is, in getting to work so closely with indigenous nations that are there doing this governance revitalization work on the ground is, you know, seeing that other world that is possible. 

Of communities that are facing very significant challenges, but are drawing on their ancient teachings, they’re applying it in modern contexts. And for an outsider, such as myself, it’s like a seeing is believing kind of moment. It’s very difficult to explain, but to be there, you can experience a way of governing, a way of relationships, that is truly different. And from my experience, very inspiring and powerful in comparison to the understandings that I was brought up with about how governments work, and what governance is, and really bringing in a connection to the land, and to communities and to relationships. 

And so, I guess that would be a roundabout way of saying, I think, in addition to being committed to doing the legal and policy and “activist” aspects of the work is as important or perhaps more important to do the work of understanding and trying to connect with and learning about my own relationship to the land. The territory that I’m on, the relationships that I have. How am I showing up in my entire personal life as well in a way that is reflecting the ideals and the systems and structures that I want to see flourish and take root around me? 

I think really emphasizing the personal aspect of that, and the inquisitive nature and the commitment to lifelong learning that is required to be able to do the work well, while recognizing that we’re all learning as we go along as well.

Umair Muhammad

Well, thanks so much, Gavin. This was great.

Gavin Smith

It was great to talk. Thanks.