2022-12-15-Gitxalla-hearings-Vancouver-16-min

First Nations’ legal challenge could completely change mining exploration in B.C.

Court will hear from Indigenous organizations, human rights groups, environmental groups and the mining industry during 7-day hearing

Eight different groups will have the chance to weigh in on the fate of B.C.’s mining system this April. In a recent decision, the B.C. Supreme Court allowed groups representing Indigenous communities, human rights, environmental advocacy and the mining industry to present statements in a precedent-setting legal challenge to the province’s mineral tenure system. 

The B.C. Supreme Court will be deciding whether or not the way the province permits mining exploration is “unconstitutional.” The exploration process being challenged is called the “free-entry system” and it has its roots in B.C.’s gold rush era. 

The current system allows anyone to stake a mineral claim without consulting Indigenous communities or private landowners. Anyone age 18 or older can go online, review a map of the province and make a mineral claim with a few clicks on an available plot of land. A claim holder can then access the land for exploration and development. 

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Kendra Johnston, president of the Association for Mineral Exploration B.C., previously told the Narwhal that only one in 10,000 exploration projects will ever become a mine.

But claims alone can prevent Indigenous communities from protecting an area. Gitxaała Nation and Ehattesaht First Nation are leading the challenge against the B.C. government, arguing that the current free-entry system does not align with the government’s duty to consult with First Nations and has impacted their rights and title to the land.

The current system is “a relic of colonization,” Union of BC Indian Chiefs Grand Chief Stewart Phillip said to a crowded room of supporters and media in mid-December. “In this day and age, somebody can huddle over their keyboard in a dark basement and file a claim to tens of thousands of acres of Indigenous lands without any consultation whatsoever; without any notification,” Stewart said ahead of court hearings.

Grand Chief Stewart Phillip, Union of BC Indian Chiefs, shared his support for the Gitxaała legal challenge at a press conference in Vancouver.
Union of BC Indian Chiefs Grand Chief Stewart Phillip supports the Gitxaała legal challenge. “This represents hope,” he said. Photo: Jimmy Jeong / The Narwhal

The Union of BC Indian Chiefs was part of one of the groups requesting intervenor status mid-December. An intervenor is a group or individual allowed to make legal arguments in a case other than the individual or group who brought the case forward. The court must give permission for an intervenor to submit its position and can impose limitations on how that position is presented.

In December, eight groups representing 19 different First Nations, Indigenous organizations, human rights and environmental groups as well as mineral exploration and the mining industry were seeking intervenor status. On Jan. 6, the court decided all eight groups have the right to intervene.

Sm’ooygit Nees Hiwaas (Matthew Hill), Gitxaała Hereditary Chief launched this case in October 2021. Chief Simon John of Ehattesaht First Nation launched a similar petition in June 2022. The two cases joined last September. Gitxaała seeks a declaration that the Crown failed to meet their duty to consult with their leadership as required by B.C.’s Declaration on the Rights of Indigenous Peoples Act, they want multiple claims in their territory to be quashed and the online mineral and title system suspended in their territory.

One mining exploration company will be intervening in support of Gitxaała: First Tellurium Corp., an exploration junior with a mineral project outside of Smithers. “We believe going forward, the [United Nations Declaration on the Rights of Indigenous Peoples]’s fundamental proposition of free, prior and informed consent must be at the heart of mineral exploration and mining tenures in British Columbia,” Tony Fogarassy, Chairperson of First Tellurium said at a press conference before the court hearings.

But not all exploration companies agree. A group made up of the Association for Mineral Exploration, the Mining Association of British Columbia and the Prospectors and Developers Association of Canada will be intervening to lobby against changing the free-entry system. 

“Any significant disruption” to the improvements and collaborative work currently underway to align with B.C.’s Declaration on the Rights of Indigenous Peoples Act, “poses a risk to investors in existing mines and proposed exploration work,” Michael Goehring, president and CEO of the Mining Association of British Columbia, said in an affidavit. He also expressed concerns that changing the system would cause short-term impact to small communities across the province and long-term economic impact to the “viability of the mining industry.”

The Gitxaała launched a ground-breaking legal challenge against BC’s outdated practice of granting mineral claims without Indigenous consultation or consent
Eight groups representing First Nations, Indigenous organizations, human rights and environmental groups as well as mineral exploration and the mining industry asked the court to have a say in this case, requesting “intervenor status.” On Jan. 6, the court decided all eight groups will have that right. Photo: Jimmy Jeong / The Narwhal

We decided to take a stand’: Gitxaała leadership

After a long day of court hearings in December, Gitxaała leadership, allied nations and mining justice advocates met for a fundraising event to help cover the legal costs of the case. This is a “once-in-a-generation chance to strike down gold-rush era laws that violate rights and desecrate Indigenous lands and waters,” read the invite from West Coast Environmental Law BC Mining Law Reform, Gitxaala Nation and Respecting Aboriginal Values and Environmental Needs, a charity that raises money for Indigenous legal challenges.

In front of a room of supporters, Hill shared how overwhelming mining damage has been for his people. In 2015, Yellow Giant mine discharged tailings and effluent into waterways, wetlands and forest of Banks Island, in Gitxaała territory approximately 60 kilometres southwest of Prince Rupert, part of the Great Bear Rainforest. The provincial government ordered a shut-down of the site the same year. “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 bed,” Hill previously told The Narwhal.

Hill shared childhood memories of digging up giant clams and feeling connected to the land. He wants to ensure his people’s land and way of life is protected for future generations.

“When we realized claims were in the middle of our territory we decided to take a stand,” Hill said. 

The Gitanyow will be intervening in support of the Gitxaała. The First Nation declared its territory in northwest B.C. a protected area in 2021 in an attempt to protect critical salmon spawning habitat from claims and potential mining projects. But the claims on the land remain and removing them might require the province to compensate claim holders. Naxginkw (Tara Marsden), wilp sustainability director for the Gitanyow Hereditary Chiefs said that the government has estimated it could cost between four and $7 million to compensate tenure holders on their territory. 

“The shell game the mining industry is playing with Indigenous lands and taxpayer dollars needs to be overhauled,” Marsden said at the fundraising event. 

Strohn Creek, in northwest B.C., falls under the Gitanyow's IPCA
In 2021, the Gitanyow announced immediate protection of 54,000 hectares of land and water in Gitanyow territory, in northwest B.C., including Strohn Creek. Photo: Ryan Dickie / The Narwhal

The government is currently considering revisions to the Mineral Tenure Act and in his most recent mandate letter to Josie Osborne, Minister of Energy, Mines and Low Carbon Innovation, Premier David Eby asked that “the co-development of a modernized Mineral Tenure Act with First Nations and Indigenous organizations, in alignment with the [Declaration on the Rights of Indigenous Peoples Act] Action Plan commitment” be prioritized.

The court will decide the fate of the province’s free-mining system after a seven-day hearing in April. If it decides to immediately strike down the current system, the Crown argues there would be a policy vacuum for an “income-generating industry” as the province is not prepared to implement an alternative system to dictate how claims would be made or what the duty to consult would look like.

However, if there is a delay in implementation, the Gitxaała lawyers argue there could be a “claim-staking-free-for-all.” Miners will try and stake as many claims as possible before the process is changed and a duty to consult is required.

For Grand Chief Stewart Phillip this case is an opportunity for progressive change in the province. “This represents hope,” he said.

Updated Jan. 17, 2023, at 9:57 a.m. PT: This article has been updated to clarify Michael Goehring’s title. He is president and CEO of the Mining Association of British Columbia not the president of the Association for Mineral Exploration as previously stated.

Updated Jan. April 6, 2023, at 4:56 p.m. PT: This article has been updated to clarify the remedies that Gitxaała is seeking in the case.

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