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.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

British Columbians share the concerns of Alaskans about risks to the environment from mining operations and most want to see tougher mining laws and regulations in B.C., according to two polls released Thursday.

The Greenberg Quinlan Rosner Research polls, commissioned by SkeenaWild in B.C. and Salmon Beyond Borders in Alaska, found 75 per cent of more than 800 British Columbians polled were concerned about a tailings dam break and 54 per cent felt, that under current rules, B.C. mining poses risks to health, the environment, fishing and tourism.

“These results show that the people of B.C. are not willing to give mining companies social licence to proceed with projects if they feel salmon, water and wildlife are at risk,” Greg Knox, SkeenaWild executive director, said.

The support for rule reforms was driven by concerns that existing land use rules, such as the Mineral Tenure Act, are pro-mining and threaten the province’s natural beauty.

More than 85 per cent said they would like to see the Mineral Tenure Act changed to give other uses the same priority as mining.

Thirty-nine per cent said the jobs and economic benefits of mining outweigh those risks, but many of those agreed that reforming B.C.’s mining laws would protect jobs by ensuring other key industries were not affected by a mining spill. Only 17 per cent said reforming mining laws would cost jobs and provincial revenues, meaning taxes would increase.

When asked about Northwest B.C., where a mining boom is underway, 68 per cent said conservation should be a higher priority than development because of the importance of salmon-bearing rivers and populations of animals such as grizzly bears.

Less than half approved of how the provincial government is regulating and monitoring mines. Suggested changes include ensuring mining companies have fully-funded plans for cleanup, closure and long-term management of tailings before approval is granted, a mandatory, industry-funded clean-up fund for projects in watersheds shared by Alaska and B.C. and mining no-go zones in sensitive areas such as key salmon watersheds.

The 2014 Mount Polley tailings pond dam collapse, which sent 24-million cubic metres of waste surging into lakes and waterways from the mine owned by Imperial Metals, has focused attention on the need for reforms, Knox said.

“Greater financial assurance from mining companies, stronger government oversight and monitoring and establishing certain areas, like key salmon habitat, off-limits to mining will go a long way to avoid opposition from First Nations and local communities,” he said.

The B.C. government is accepting public submissions on reform of rules dealing with mine tailings until Oct. 16.

In Alaska, where, in the wake of Mount Polley, there has been growing concern about B.C.’s mining regulations because of mines opening close to salmon-bearing rivers running into Southeast Alaska, the poll shows overwhelming support for increased protection.

Almost three-quarters of 500 Alaskans polled were concerned about a mining waste spill affecting shared watersheds. That number jumped to 86 per cent for those living in Southeast Alaska.

More than 75 per cent of respondents want Alaska to have a seat at an international table to address concerns about B.C. mining in transboundary watersheds and 45 per cent said their vote for a member of Congress would hinge on the candidate pushing for a seat at the table.

“This provides a clear mandate for significant action by government and industry to ensure B.C.’s mining development doesn’t harm salmon, water quality, jobs and way of life downstream,” said Heather Hardcastle of Salmon Beyond Borders.

The B.C poll is subject to a margin of error of plus or minus 3.5 per cent, 19 times out of 20 and the Alaska poll has a margin of error of plus or minus 4.4 per cent 19 times out of 20.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.