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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The B.C. government is being taken to court for giving BC Hydro permission to move amphibian species along the banks of the Peace River during construction of the Site C dam.

The legal challenge, recently filed by Josette Weir and Sierra Club BC, asks for a judicial review of the government’s actions in June when a regional manager with the Ministry of Forests, Lands and Natural Resource Operations (FLNRO) granted BC Hydro permission to perform amphibian salvage without proper permits issued in accordance with the Wildlife Act.

The emergency permits, first revealed by DeSmog Canada, raise questions about the relationship between government ministries and BC Hydro, which is under pressure to keep to Premier Christy Clark's word to get the dam "past the point of no return" before the May 2017 provincial election.

“There is a lot of pressure to get this project built amid controversy,” Weir, who lives in Smithers, B.C., told DeSmog Canada. “But it’s very important that the people who are in charge apply the law.”

Documents released to DeSmog Canada, including a request from BC Hydro for last-minute permits and several e-mails between a FLNRO official and local First Nations, show ministry bureaucrat, Chris Addison, issued permission for emergency amphibian salvage without due process.

In the e-mail exchange Addison suggested he had the legal authority to do so although Jocelyn Stacey, assistant professor at the UBC Allard School of Law and expert in environmental and administrative law, told DeSmog Canada Addison violated the law when he granted BC Hydro exemption from the permitting process.

“The Wildlife Act and its regulations do not allow for exemptions from the ordinary permitting process,” Stacey said. “This means that FLNRO acted without legal authority when it issued the exemption to BC Hydro.”

Weir said she was deeply troubled by this apparently blatant circumvention of the law.

“What is shocking is that [Addison] did it knowingly,” she said. “One can only wonder about the political hierarchy that is overseeing his ability to issue exemptions or not.”

“There must be a lot of political pressure and we as members of the public must be vigilant.”

Weir and the Sierra Club BC brought the case to the provincial Supreme Court through the Pacific Centre for Environmental Law and Litigation (CELL).

“I’m very thankful for that newly formed group,” Weir said. “It’s going to be their first case and I’m so grateful the lawyers would look into this. Otherwise it would have just fallen under the radar.”

B.C. Faces Lawsuit Over Rushed #SiteC Permits https://t.co/BVRP7zl45g @StopSiteC #bcpoli #cdnpoli pic.twitter.com/84CIYFYRhZ

— DeSmog Canada (@DeSmogCanada) July 29, 2016

Chris Tollefson, co-founder of the centre and experienced environmental litigator, said this issue is troubling from a rule of law perspective.

“This is the kind of situation that desperately needs to be brought to the courts for adjudication,” Tollefson said. “The evidence here suggests that a government official not only didn’t follow the rule of law but was actively assisting BC Hydro in breaking the law. If that’s true, that should concern all British Columbians regardless of how they feel about Site C."

Bob Peart, executive director of Sierra Club BC, said he sees the issuing of illegal permits as part of a larger government status quo, where environmental and First Nations rights are violated with impunity. 

The responsibility is left with individuals, First Nations or environmental organizations to bring legal challenges to the courts, Peart said, which is time-consuming and expensive.

"Industry and government have much thicker wallets than we have and to do these cases ourselves — we just don’t have that kind of funding, nor do First Nations," he said, adding the government appears to bet on the fact no one will challenge them when they misstep.

"It's a spin of the dice, risk analysis on their part," he said. "It's a part of the pattern of this government."

David Conway, BC Hydro’s community relations manager for the Site C project, did not respond to DeSmog Canada’s request for comment.

The Ministry of Forests, Lands and Natural Resource Operations told CTV they were acting in the public interest.

"Given the extenuating circumstances, the regional manager…decided to communicate his comfort with the amphibian removal proceeding on a limited scope and in advance of a broader permit which has now been issued," the statement read. "The alternative would be to allow the amphibians to die."

In 2011, Weir won a legal challenge that forced Health Canada to review the impacts of Monsanto’s herbicide Roundup on amphibian species.

“It opened me up to amphibians. I have no claim that I have a special relationship with amphibians aside from being French,” she said with a laugh.

“But I do understand that they are a part of the natural web that we are eroding all the time. As members of the public we should be extremely vigilant about the health of the planet.”

Weir added Site C is a unique issue because of the political pressure to complete the project.

“There is this sense in the north that no one is looking,” Weir said. “That’s why it’s very important to follow the rules. That’s why we have laws and regulations.”

Image: Site C construction along the banks of the Peace River. Photo: Jayce Hawkins

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Starting today the federal government will face 18 separate challenges against the Enbridge Northern Gateway pipeline in the Federal Court of Appeal in Vancouver.

A consolidated group of environmental organizations, one labour union and First Nations are fighting the approval of the project on the grounds that the federal government violated First Nations rights, failed to protect species at risk and did not consider the full impacts of an oil spill in its decision.

Chris Tollefson, lawyer from the University of Victoria Environmental Law Centre and counsel for appellant B.C. Nature, said the case demonstrates the importance of due process when making decisions on major infrastructure projects like oil and gas pipelines.

“This case has the potential to affirm how important it is to have a robust federal environmental assessment law that holds project proponents to account,” he said.

Challenges presented by First Nations appellants will be presented over the next two days, Tollefson explained, with environmental groups following. The trial will stretch over six days, the longest a case has ever been before the Federal Court of Appeals.

Appellants represented in the hearing include the Gitga’at First Nation, Gitxaala Nation, Haida Nation, Haisla Nation, Heiltsuk Nation, Kitasoo Xai’Xais Nation, Nadleh Whut’en, Nak’azdli Whut’en, B.C. Nature, ForestEthics Advocacy Association, Living Oceans Society, Raincoast Conservation Foundation and Unifor.

The 1,177-kilometre Northern Gateway pipeline is a twin pipeline proposed to carry diluted bitumen from the Alberta oilsands to the Douglas Channel in Kitimat, B.C. A westbound pipeline would carry up to 525,000 barrels of diluted bitumen per day to the B.C. coast, while an eastbound pipeline would carry 193,000 barrels of condensate per day to Alberta. The project received federal approval in June 2014, pending more than 200 conditions.

The pipeline review process galvanized the environmental community and First Nations across B.C. in an unprecedented wave of opposition. 

“Allowing these proposals to proceed is not an option,” Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, told the audience at a press conference this morning.

“All of Haida Gwaii is going to stand up to protect our island,” Peter Lantin, president of the Haida Nation said. "The threats being posed to us are leading to unprecedented collaboration.”

"If this decision is not overturned, decades of work with government and Haida will be unravelled," Lantin said.

"Canada hasn't looked after the lands and people,” Rueben George, from the Tsleil-wau-tuth First Nation, said. “That's why these Nations are here."

A “United Against Enbridge” rally is set to take place on the steps of the federal court today at 12:30pm.

"Enbridge cannot be trusted to build and operate a pipeline that exposes some of our most precious watersheds and ecosystems to the risk of a catastrophic oil spill," Nikki Skuce, senior energy campaigner with ForestEthics Advocacy, said in a press release.

Ivan Giesbrecht, spokesman for Northern Gateway, said Enbridge recognizes the rights of First Nations.

"Our ongoing priority is to continue to build trust, engage in respectful dialogues and build meaningful partnerships with First Nations and Métis communities," Giesbrecht said in a press release.

"Despite this litigation, we remain committed to working collaboratively with the applicant First Nations and would be very pleased to develop mutually beneficial solutions with them."

For a legal backgrounder on the challenges being raised in this case, see West Coast Environmental Law’s summary.

Image: Kerri Coles

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A First Nations campaign to raise funds to conduct scientific research on the cumulative impacts of the oilsands has raised more than $27,000, surpassing its original goal of $25,000. The campaign ended yesterday after a short run of two weeks.

The donated funds will go toward the Beaver Lake Cree Nation’s constitutional challenge to the cumulative impacts of oilsands development. The trial is important, says Susan Smitten from the group RAVEN (Respecting Aboriginal Values and Environmental Needs) because it represents the “first time in Canadian history that the Court is allowing this kind of challenge to widespread industrial activity based on the cumulative effects these activities have on the Beaver Lake Cree’s constitutionally protected rights.”

The Tar Sands Trial

The pending trial hinges on the First Nation’s ability to demonstrate the cumulative impacts of oilsands expansion on their treaty rights. This is no small feat.

In an interview RAVEN’s Susan Smitten told DeSmog “this case is about proving the cumulative impact piece by piece. Experts will be needed to show how each individual species — from the ungulates to the fish — will be or already are being affected by the tar sands industries. This means gathering a lot of data — also about the impact on water, land and air.”

This requires putting together data from disparate sources into comprehensive impacts report for a judge to digest, Smitten says. “Science will create a picture that shows definitively how the treaty rights are being infringed.”

An obvious example, Smitten says, rests in the vanishing caribou herds from traditional Beaver Lake Cree territory.

“The woodland caribou report done by University of Alberta expert Stan Boutin showed the woodland caribou in the Beaver Lake Cree’s traditional region have already declined by 70 percent since 1996. That science is a smoking gun that tar sands development is violating the Beaver Lake Cree’s right to hunt and fish in the band’s usual and accustomed places under the treaty with the government of Canada.”

She adds: “What science will help to clearly show is that the expansion of the tar sands project is making it impossible for the band to hunt and fish: they can’t find an animal, and if they do it is often inedible because it has been exposed to toxins. So the promises in the treaty are not being kept.”

The fundraising campaign will in part support the band’s much larger goal of raising $2 million to pursue cumulative impacts research and expert witnesses.

“I’m thrilled that so many people supported this cause,” Smitten says. “I’m surprised that within two weeks the target of $25,000 was not just reached but surpassed. It tells me that there are many concerned global citizens wanting to do something real. They want to find a way to make a difference on an issue that until this legal action came along seemed too huge, to impossible, too overwhelming. But now there is a way to work for a better future.”

RAVEN’s vision, she says, “is a country that embraces the caretaker values of First Nations and their equitable access to the justice system within a thriving natural habitat. This legal action launched by some of our bravest citizens is a way to make that a reality.”

A Problem of Regulation

One of the most popular government refrains about the Alberta oilsands is that the megaproject operates under the calculating eye of one of the most advanced environmental regimes known to the oil and gas industry. Yet, scientists and environmental organizations have said for years that neither provincial nor federal oversight is up to the task of monitoring the world’s largest industrial project. Groups such as the Pembina Institute show that when the provincial government does make specific regulatory recommendations, in some cases it is completely ignored by industry. Other reports have shown that industry violations most often go unpunished.

One thing is clear: government regulation has been incapable of keeping pace with rapid expansion of the project. And despite government and industry claims to the contrary, the impact of that expansion has been significant.

And, according to the approval of the Beaver Lake Cree's legal battle, Canada’s legal courts feel these impacts deserve a fair trial.

Cumulative Impacts

The oilsands have long been known to have a negative impact on many aspects of northern Alberta life. The disappearance of woodland caribou may be one of the most notable measures of the development’s high costs, but so too are the health affects felt by local First Nations, who often live off the land. The Beaver Lake Cree are one of these nations.

Within the traditional territory of Treaty 6, the Beaver Lake Cree live on an expanse of land guaranteed by the Canadian government to support their traditional way of life. In 2008 the Beaver Lake Cree argued in an Alberta court that the government’s ceaseless permitting of new oilsands projects was inhibiting their ability to practice traditional ways of life — the very traditions guaranteed to them by the Canadian government since 1876.

The cumulative impacts, they said, had so fundamentally changed the nature of the landscape that hunting and trapping were becoming obsolete. At issue are the more than 19,000 project authorizations and some 300 individual industrial projects approved by the provincial and federal governments. The cumulative effects of the ever-growing oilsands development on locals species and ecology, including the presence of hydrocarbon contaminants in fish populations and lake sediment, are a direct threat to First Nation ways of life, say the Beaver Lake Cree.

When the government of Canada tried to have the case thrown out of court, the Alberta Court of Appeals responded with a judicious affront. The federal government, the Court of Appeals cautioned in April 2013, would benefit from taking the case seriously and should hasten to prepare for “litigation through trial.”

Industrial Impacts Ongoing

Since then the Beaver Lake Cree have experienced several unprecedented oil spills within their traditional boundaries. The infamous Cold Lake oil spills, discovered on four well pads operated by Canadian Natural Resources Ltd. (CNRL), spilled a total of at least 1.8 million litres of oil into surrounding forest and wetlands. The spills were related to a high-pressure steam injection process called Cyclic Steam Stimulation (CSS). Several fissures in the ground seeped oil into the area for months as the company and energy regulator tried to understand the cause of the release.

A total of two beavers, 51 birds, 106 amphibians and 62 small mammals died as a result of the spills and a portion of a lake was drained to expose an underwater fissure leaking oil into the water body.

According to Crystal Lameman, member of the Beaver Lake Cree Nation, the Cold Lake spills pointed to the often dangerous and experimental technologies used in oilsands extraction. The public knows very little about in-situ or underground extraction methods and yet the vast majority of oilsands deposits will be developed using these methods.

“We’re putting our guards down,” Lameman told DeSmog in July, while industry and government put the First Nation’s water at risk. “When we have spills like the CNRL spill, our aquifers are connected, so we know that the spills all have a connection to the water.” 

Lameman says these kinds of accidents, even if they don't immediately or directly affect human beings, "affect those beings that cannot speak for themselves. And it is those beings that we have a constitutionally protect right to live off of, to hunt, fish and forage for. But if they're drinking toxic water, they're breathing toxic air, then how can they guarantee to us that those animals are in their purest form?" 

Lead Image Credit: Kris Krug via flickr

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