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. 

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.

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.”

‘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. 

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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A new study published today in the journal Nature finds the vast majority – 99 per cent – of Canada’s oilsands are “unburnable” if the world is to avoid a global temperature rise of more than 2 degrees Celsius. 

The study, co-authored by Christophe McGlade and Paul Ekins, also found over 80 per cent of the world’s current coal reserves and half of all gas reserves similarly need to remain unused. 

Given changing market conditions that are already making the production of expensive and carbon-intensive fossil fuel reserves – like oilsands crude – more difficult, the authors concluded that a concerted effort to limit global warming would result in a massive drop in Canadian oil production.

The extraction of bitumen would “drop to negligible levels after 2020 in all scenarios because it is considerably less economic than other methods of production,” the report states.

The use of in situ mining and carbon capture and storage (CCS) to limit greenhouse gas emissions from oilsands production would only slightly move the needle, according to the study, with a total of 85 per cent still remaining unburnable despite these efforts. The authors also predict CCS, a process both the government of Canada and the oil and gas industry are increasingly relying on, will have a limited role to play in a world taking action to limit global warming.

“Because of the expense of CCS, its relatively late date of introduction (2025), and the assumed maximum rate at which it can be built, CCS has a relatively modest effect on the overall levels of fossil fuel that can be produced before 2050 in a 2C scenario.”

The authors argue that keeping within that 2C target will require an entirely reworked relationship with carbon and a concerted effort to keep reserves underground.

“A stark transformation in our understanding of fossil fuel availability is necessary,” the authors write in the paper’s conclusion, adding, “in a climate-constrained world…large portions of the reserve base and an even greater proportion of the resource base [recoverable under current economic conditions] should not be produced if the temperature rise is to remain below 2 degrees Celsius.”

The new research for the first time uses a single integrated model to analyze the world’s oil, gas and coal reserves and what portion of the remaining global ‘carbon budget’ countries might claim given the type and location of their reserves.

Within their analysis McGlade and Ekins found the Middle East holds over half of the world’s unburnable oil and that Canada has the lowest utilization of its deposits – the majority of which are buried in bitumen stores – while the U.S. has the world’s highest.

Coal is by far the most restricted fossil fuel resource in the study with 82 per cent of global resources remaining unburned before 2050.

The region assignment of unburnable reserves can be seen in the chart below:

In December countries will gather at the UN climate summit in Paris to sign an international climate deal meant to limit rising greenhouse gas emissions and global atmospheric temperatures. According to the Intergovernmental Panel on Climate Change (IPCC) in order to avoid a temperature rise above 2C the carbon budget between 2011 and 2050 must be limited to between 870-1,240 gigatonnes of CO2.

However, as the study’s authors point out, global fossil fuel reserves surpass that number by three times.

Given the urgent need to limit the use of current resources, the study makes the point that policy action on climate change would “render unnecessary” the continued exploration of new fossil fuel reserves.

As DeSmog Canada recently reported, G20 nations spend around $88 billion annually to explore for new coal, oil and gas reserves.

A report produced by the Overseas Development Institute and Oil Change International notes this level of investment for carbon stores that may never be exploited creates a “triple-loss” scenario by investing in potentially stranded fossil fuels, diverting investment from alternative energy, and undermining an ambitious climate deal in 2015.

“In 2013, fossil fuel companies spent some $670bn (£443bn) on exploring for new oil and gas resources. One might ask why they are doing this when there is more in the ground than we can afford to burn,” study author Paul Ekins told The Guardian.

“The investors in those companies might feel that money is better spent either developing low-carbon energy sources or being returned to investors as dividends,” said Ekins. 

Image Credit: Oilsands operations by Kris Krug.

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