A first-of-its-kind mineral court claim and legal action saw Gitxaała First Nation (Kitkatla) in the B.C. Supreme Court for the first day of hearings on April 3.
The Court will begin hearing arguments from more than 15 different parties to consider the enforceability of B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA).
The Gitxaała Nation first filed the legal challenge in October 2021 to dispute the provincial government’s “free entry” mineral staking procedures. It seeks to overturn multiple mineral claims granted by the Province on Lax k’naga dzol (Banks Island), which is in the heart of Gitxaała territory, located between Prince Rupert and Kitimat.
It also seeks to suspend further claim staking in Gitxaała territory.
Linda Innes, elected chief councillor of the Gitxaała Nation, said at a press conference on the first day of the scheduled two-week hearing that the mineral claims process violates the government’s constitutional obligation to consult with Indigenous Nations. However, she is “very hopeful” the B.C. Supreme Court will side with them.
“In their legal argument in our case, B.C. has the audacity to say that giving away mineral rights in our territory does not trigger the duty to consult. We disagree with that,” she said before the court hearing began.
“It is time for the B.C. government to walk the talk by putting an end to this practice of granting mineral rights without consultation or consent from Indigenous nations in British Columbia,” Innes said.
The Gitxaała case sets out that the current process to obtain a mineral claim without Indigenous consultation or consent is outdated and unconstitutional under B.C.’s DRIPA and is also inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Since Gitxaała launched the case in October 2021, the provincial government has made public commitments to reform the mineral tenure regime, yet it has not changed its legal position and continues to fight Gitxaała in court, a media statement from Gitxaala stated.
“While proudly announcing its commitments to reconciliation, the Crown continues to argue in court that they have no legal obligation to make good on those commitments – and that is a problem that should be of serious concern to all residents of British Columbia, not just Gitxaała,” Innes said.
In Oct. 2021, Innes told The Northern View that, for $34, anyone with a computer has been able to acquire rights to traditional territory in an online registry. At the time, she said there were more than 41 claims for mining rights on Banks Island.
Bad mining practices, prospecting camps and mining operations have been polluting lakes and salmon streams that the Kitkatla Island population relies on, impacting the natural resources, medicines and people for generations, she said.
“Gitxaała smgyigyet (hereditary leaders) have the responsibility to manage and protect our territories and resources according to the ayaawx (Gitxaała laws). Our ayaawx expresses, among other things, the sacredness of our territory and the need to treat the environment with the greatest respect and to ensure proper treatment of our resources,” said Gitxaała Sm’ooygit Nees Hiwaas (Matthew Hill).
“By giving away the mineral rights that are part of our territory, the Province has broken both our laws and their own,” Nees Hiwaas said.
Innes said despite the reported progress and new relationships promised when the government signed the DRIPA into law, the Province continues to give away mining rights in the territory without consent.
“This impacts our ownership, governance and use of our lands and interferes with our right to make management decisions and to choose our own priorities,” Innes said.
The case will be heard in tandem with a related legal challenge filed in June 2022 by the Ehattesaht First Nation that requested a judicial review challenging mineral claims in its territories.
The court will hear from the two First Nations as well as intervenors from four other First Nations, the First Nations Leadership Council, six environmental and community groups and two mineral exploration businesses.
The BC Human Rights Commissioner is also intervening in the case.
K-J Millar | Editor and Multimedia Journalist
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