Members of the Gitxaała Nation, including chief councillor Linda Innes, front right, march to B.C.'s Supreme Court to ‘ensure that Gitxaała law is respected,’ in Vancouver on April 3.DARRYL DYCK/The Canadian Press
British Columbia’s long-standing system for awarding mining rights is being challenged at B.C. Supreme Court this week in a judicial review that will test the strength of the province’s Declaration of the Rights of Indigenous Peoples Act.
Two cases being heard together, brought by the Gitxaała and the Ehattesaht First Nations, argue that mining claims awarded under the Mineral Tenure Act violated the provincial government’s legal obligation to seek “free, prior and informed consent” before allowing development within the traditional territories of Indigenous peoples.
“We are in court this week to ensure that Gitxaała law is respected and so that future generations of Gitxaała may continue to benefit from our land, water and resources,” Linda Innes, Gitxaała chief councillor, said Tuesday.
When B.C.’s legislators unanimously passed DRIPA into law in 2019, the government committed to launch a sweeping review of provincial laws to protect the human rights of Indigenous people.
That reform has moved slowly and in the meantime, the province continues to approve thousands of new mineral stakes every year through a “free entry” mineral claim staking process that is designed to encourage mineral exploration across much of the province.
The province allows Canadian corporations or individuals to file a claim online, and, for a small fee, that claim is automatically issued. The holder is legally entitled to any minerals inside the boundaries of their claim, and there are few limits to where a claim can be registered: In 2017, a critic of the system legally staked a claim on private property belonging to the mines minister of the day, just to demonstrate the wide latitude afforded under the Mineral Tenure Act.
Since DRIPA came into law, the province has granted an average of 7,500 new mining claims annually. A number of them were approved in Gitxaała territory on B.C.’s north coast, without consulting the First Nation about potential adverse effects on their Aboriginal rights and title. The Ehattesaht, on the northwest coast of Vancouver Island, filed a similar challenge over mineral claims in its territories.
A number of First Nations and environmental organizations, along with representatives of the mining industry, have standing as intervenors in the case, which is expected to run for two weeks.
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Another intervenor, B.C. Human Rights Commissioner Kasari Govender, said this is the first time the courts have been asked to consider how to interpret DRIPA. In her submission to the court, she said the Declaration Act is like any other piece of human rights legislation: It must take primacy over ordinary statutes like the Mineral Tenure Act.
B.C.’s Minister of Mines, Josie Osborne, said Tuesday that her government has been working for the past year on a plan to bring its mining law into compliance with DRIPA. But she said that her ministry needs to consult with each of the province’s 204 First Nations on how to proceed. “First Nations have made it very clear that the Mineral Tenure Act needs to be reformed,” she said in an interview. “It is going to take significant time and resources, and we’re really committed to doing that work.”
Kendra Johnston, president and CEO of the Association for Mineral Exploration BC, said her industry supports changes to make the permitting process more inclusive, without undermining the objectives of the staking system. “We do encourage all of our members to engage early and often with First Nations,” she said in an interview.
At a news conference on Tuesday morning before the hearing got under way, First Nations spoke in support of the Gitxaała and Ehattesaht.
Justin Kane, the Kukpi7 (chief) of the Ts’kw’aylaxw First Nation, said his community is not against mining. “It’s created revenues for our people, it’s created jobs,” he said. “Ts’kw’aylaxw’s concern is the process of how it is done, how the permits are being given without consent.”
Tara Marsden, representing the Gitanyow hereditary chiefs, said the provincial government “forced us into court to defend our fundamental human rights,” she said. “It is disappointing to say the least, to witness the duplicity of making political statements in support of our rights, while adamantly opposing in court the need for free, prior and informed consent in the granting of mineral tenures.”