The BC First Nations Energy and Mining Council is urging Indigenous communities across the province to exercise their inherent rights and authority over their territories by regulating and monitoring mining activity. The council outlined 25 recommendations in a new report that chart a path forward for First Nations to ensure consent is sought and granted before any mineral activity is conducted on their lands.
“B.C. laws for mineral tenure date back to the gold rush, to the time the province was emerging as a province — it’s ridiculous,” Allen Edzerza, Tahltan Elder and lead on the project, said in an interview. “This report is a call for action.”
Current provincial laws permit individuals and mining companies to stake a claim anywhere in the province, with the exception of parks, conserved areas and reserves, without asking permission or informing the First Nations whose territory the claim is on. When a person or company receives a mineral tenure, they’re automatically granted permission to physically go to the claimed area and conduct small-scale exploratory activities.
When B.C. enacted its Declaration on the Rights of Indigenous Peoples Act in late 2019, mining reform advocates were hopeful the province would act swiftly to meet its mandate to bring all provincial laws into alignment with the principles of the declaration. But more than two years later, the province’s mining legislation remains unchanged and mineral exploration, staking and development continues apace.
“Exploration and mining activities persist as if the Declaration Act does not exist,” Grand Chief Stewart Phillip, president of the Union of BC Indian Chiefs, said in a statement. “Once again, this forces First Nation communities to continue to rely on lengthy and costly legal processes to stop or restrict unsanctioned mining operations in our territories, threatening our sacred lands and waters.”
“We keep bringing forward the need for a framework for free, prior and informed consent,” Lydia Hwitsum, political executive with First Nations Summit and member of the Cowichan Nation, said in an interview.
She said by respecting Indigenous self-determination and establishing that framework “there can be opportunities to find ways to work together, and understand where there’s no-go [zones] for First Nations.”
“This is not intended to stop mining,” Edzerza said. “It’s saying to mining companies, ‘You need to pay attention to the unsurrendered Title and Rights if you want certainty for your project.’ And the best form of certainty is consent.”
Michael Goehring, president of the Mining Association of B.C., which represents operating mineral producers and smelters, said producers are required to engage with First Nations under current legislation.
“Most existing major mines in B.C. have either an impact benefits agreement or partnerships in place with local Indigenous nations,” he told The Narwhal in an email. “Furthermore, you won’t see a new mine built in B.C. without some form of strategic engagement, partnership or agreements in place with the local nation.”
“The report signals concern from Indigenous organizations involved and we need to listen,” he added, noting the association and its members support the principles of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), upon which B.C.’s Declaration Act is based. “Our industry recognizes that the implementation of the Declaration Act is very much a government-to-government process between the Crown and Indigenous nations.”
He said the industry association’s perspective is that provincial action on implementing the principles “must advance reconciliation and set the conditions for greater certainty for everyone in a timely way.”
Hwitsum said the report is about more than issues of consent, or mitigating impacts to First Nations and their territories from the mining sector. It’s also an important tool for Indigenous people to re-establish sovereignty after more than 100 years of colonization.
“The set of recommendations coming out of this report and the steps … to set out that process, it’s in the hands of Indigenous people on the path of self-determination,” she said. “Indigenous people are asserting their Rights and setting up processes that work for themselves.”
The report outlines multiple methods of shifting away from the current process to a new system, which each First Nation can customize, a point Hwitsum said is important given there are 198 distinct First Nations in B.C., each with different laws, governance and levels of capacity.
“There’s many paths to self determination,” she said.
The report outlines concerns with B.C.’s current laws and regulations, while providing interim steps for transitioning to a system that upholds the principles of UNDRIP.
As a starting point, the report recommends First Nations — either jointly with the province or alone, as Indigenous governing bodies — create equivalent positions to B.C.’s decision-maker on mineral tenures, the Chief Gold Commissioner. Appointed by nations, those individuals would have the authority to “issue free miner certificates, cancel claims or address conflicts related to claims.”
Once Indigenous governments establish systems to oversee mining activity, including staking and exploratory work, each nation would then exercise its authority according to its traditional laws and values, such as “restricting surface uses on their lands” or “expanding the use of Indigenous Protected and Conserved Areas.”
While the cause of many conflicts between First Nations, industry and the provincial government centres around consent, or the lack thereof, the mining sector has also adversely impacted Indigenous communities in other ways.
Under B.C. law, the process to get a mine up and running is governed by the Environmental Assessment Act, legislation regulated by the Ministry of Environment and Climate Change Strategy. The act requires consultation with First Nations, but what that looks like in practice varies from nation to nation and often falls short when a nation does not have the capacity to meaningfully engage.
The report suggests that Indigenous governments lead or co-lead environmental assessments as a means to “develop a better understanding of operating conditions and permits” which would then ensure nations can hold companies accountable when the mines are operating. It’s a step that some nations have already taken.
“Kamloops (Stk’emlupsemc Te Secwepemc) and Squamish (Sḵwx̱wú7mesh Úxwumixw) both initiated their own environmental assessment and they didn’t follow provincial law — it was their process,” Edzerza said, noting he hopes other nations will follow the lead of these nations.
Some Indigenous governments are well-versed in the technicalities of environmental assessment and would be well-equipped to shoulder more responsibility on monitoring, compliance and enforcement, duties currently relegated to public servants. The report notes Indigenous-led monitoring programs are often responsible for mine compliance in the north, and pointed to Indigenous guardians as a proven tool. As The Narwhal recently reported, guardian programs are increasingly recognized by governments and industry for their role in protecting important ecological values.
The report also noted that cumulative impacts must be considered during any land-use planning process, which includes assessment and approval of mining projects. Last year, the B.C. Supreme Court ruled the province had infringed on Blueberry River First Nations’ treaty rights by permitting and encouraging a wide array of industrial development.
For Edzerza, whose traditional territory in northern B.C. is part of a region known as the Golden Triangle for its abundance of valuable mineral resources, the issue of cumulative impacts cannot be overstated.
“Think about the kind of activity that’s going on in the Golden Triangle — there’s no question that there’s going to be cumulative impacts.”
He stressed the importance of Indigenous governments taking a leadership role in light of B.C.’s track record, which includes a legacy of orphaned and abandoned mines left to pollute the environment. He also noted the province is not holding companies responsible for clean-up costs after resource extraction is finished.
“It’s our communities that are typically the ones left holding the bag because they’re the ones that have to live with contamination,” he said. “When you read stories like salmon populations are less than 50 per cent what they were 10 years ago and we see stories like Tulsequah Chief continuing to leach contaminants into the Taku River system, these are the kinds of things that make First Nations say, ‘This is unacceptable. We can’t keep doing this.’ ”
The report comes just as B.C.’s annual Mineral Exploration Week is underway, bringing members of industry and government representatives together to discuss trends and opportunities in the sector.
Bruce Ralston, Minister of Energy, Mines and Low Carbon Innovation, celebrated the arrival of the industry-focused week, saying, “British Columbia is home to a world-class mining jurisdiction and a thriving mineral-exploration sector.”
“Mineral exploration in British Columbia is truly a collaborative venture involving industry, Indigenous groups and communities throughout the province,” Ralston said in a statement.
Yet, conflicts continue to flare up over the province’s lack of collaboration or consultation with First Nations on mining activity.
Last summer, both the Nuxalk Nation on B.C.’s central coast and the Gitanyow hereditary chiefs in the northwest took action to protect their respective territories from unwanted mineral exploration.
The Nuxalk hereditary leadership issued an eviction notice to Juggernaut Exploration, noting “tenures and permits issued by Canada or British Columbia are in violation of our human rights.”
On Gitanyow territory, the chiefs declared 54,000 hectares of land and water the Wilp Wii Litsxw Meziadin Indigenous Protected Area, in response to mining exploration companies staking claims as they eyed potential deposits revealed by receding glaciers.
In October, the northwest coast Gitxaała Nation filed a legal challenge against the province for its failure to implement the principles of free, prior and informed consent before granting mineral tenures on Banks Island, which the Gitxaała refer to as their “bread basket.”
Edzerza said continuing to respond to issues related to consent on a conflict-by-conflict basis isn’t doing anyone any favours.
“Unfortunately, what Indigenous people have observed and experienced over the years, is that they have to quite often rely on the courts to get to some point where you have an understanding,” he explained. “Courts have a tendency to have winners and losers and this is one of those situations where I don’t think [the province] wants to be losing, if [it] wants to find a solution that works for everybody.”
B.C.’s Ministry of Energy, Mines and Low Carbon Innovation did not respond to questions from The Narwhal about the report by time of publication.
Edzerza reiterated that many First Nations support mining and the socio-economic benefits the industry can bring to communities.
“We’re not saying mining has to stop. We’re saying it’s important for mining to go forward, especially when you start looking at transition from fossil fuel economy to a low carbon economy,” he said.
“With mining as active as it is in the Golden Triangle, it’s critically important for those mining companies to understand that the absolute certainty that they need can only be achieved through consent.”
Some companies are already working to implement the principles of UNDRIP in their conduct and business models.
For example, in early 2021, Skeena Resources worked with the Tahltan Nation, the province and non-profit environmental organizations to relinquish its mineral claims and set up a new conservancy. Now, the mining company and the nation are working on a consent-based decision-making agreement to restart a shuttered gold and silver mine.
Justin Himmelright, vice president of sustainability with the mining company, told The Narwhal the future of the industry is consent and companies like Skeena Resources are just ahead of the curve.
“There’s some obvious business rationale, in terms of certainty and having the reputation that you need for successful investment in the company,” he told The Narwhal in a previous interview. “It’s also very much about being on the right side of history.”
For Tony Fogarassy, lawyer and chairman of First Tellurium, a mineral exploration company with tellurium, silver and gold prospects just south of Smithers on Wet’suwet’en territory, seeking consent starts before staking a claim.
“Before we actually land a chopper or rent a boat or get on an ATV and hack at the rocks to determine whether or not we want to stake it, we go to the First Nation and we say, ‘May we access your lands … and if there’s something of interest, we’d like to stake a mineral claim, again with your consent?’ ” he said in an interview.
He echoed Himmelright’s thoughts on how developing this relationship makes good business sense.
“Asking for permission to get access to ancestral land, much less stake a claim, you’re going to be … in a much better position because you’ve got a positive relationship.”
Fogarassy told The Narwhal his approach is rooted in an understanding of legal principles. He said the idea that B.C. and Canada have any authority on unceded Indigenous territories ignores the fact that most B.C. First Nations have never given up their Rights and Title to the lands, a fact that was confirmed in the country’s highest court with the landmark Delgamuukw case.
“How the law of England became the law on the land that you and I know as British Columbia — it’s based on a legal fiction,” he said.
Hwitsum, with the First Nations Summit, said the report on consent represents one part of a bigger movement to address the impacts of colonization.
“It’s been a long process, to say the least,” she said. “And I’m not only talking about the provincial government’s process, but First Nations’ long-standing position and directive towards self determination.”
Edzerza paraphrased Martin Luther King Jr.’s words about silence being a form of consent and said it resonated with him when he heard it again recently.
“We cannot afford to be silent anymore.”
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