A First Nation that launched a legal challenge over an online registry the B.C. government uses to automatically grant mineral rights has argued in court that the process breaches its rights.
The Gitxaała Nation filed a petition in October 2021 seeking a judicial review, arguing the rules don’t require the government to consult with the First Nation and simply grant the claim.
The two-week court hearing began Monday at the B.C. Supreme Court in Vancouver. The nation is billing its case as the “first of its kind” in B.C., aiming to overturn multiple mineral claims granted by the province on an island in the heart of its territory, allegedly without prior consent or notice.
At a press conference in downtown Vancouver, Gitxaała smgyigyet (hereditary leaders) said they have a duty to manage and protect their territories and resources according to their laws, called ayaawx.
“Our ancestors valued our lands the way in which they value our children. They’re sacred, very sacred,” said Gitxaała Sm’ooygit Nees Hiwaas (Matthew Hill).
“We are taught never to abuse any part of our land or any part of our resources. That is absolutely forbidden. Then came greed and exploitation, and it’s really hitting us hard now.”
According to the Ministry of Energy, Mines and Low Carbon Innovation’s website, B.C. is “legally obligated to consult and accommodate (where required) First Nations on land and resource decisions” that could impact their interests.
The B.C. government has also committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which requires governments to obtain free, prior and informed consent before taking actions that affect Indigenous Peoples and territories.
“They’re still playing with it. They’re still dishonest in this process,” said Nees Hiwaas. “(The Mineral Tenure Act) has been taking parts of our lands and exploiting them under our very noses.
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“Our food resources are still tarnished by mine tailings. It’s never been cleaned up.”
None of the nation’s allegations have been tested in court.
Under B.C.’s Mineral Tenure Act, a “free miner” who is exercising a right under the act “is entitled to enter private lands, provided those lands are ‘mineral lands,'” as defined by the legislation. A free miner is anyone who holds a Free Miner Certificate, while mineral lands include all lands whose mineral rights are reserved to the government, including “almost all privately-owned land.”
Exceptions to the right of entry include land that is occupied by buildings, homes, orchards, agriculture, protected heritage property, parks and land lawfully occupied for mining purposes. The legislation stipulates that notice must be provided to the landowner prior to entry.
In order to for a Mines Act permit for mining activity to be issued, however, consultation is required with “potentially impacted” First Nations.
Energy and Mines Minister Josie Osborne said she couldn’t comment on the legal case itself, but reforming the Mining Tenure Act — which hasn’t changed in more than a century — is part of her mandate.
“It’s one of my highest priorities. It’s an important piece of legislation, high on the DRIPPA action plan, and some work that we have to do is already underway with First Nations now,” she told Global News on Monday.
“I think we have to separate out the consultation and engagement processes that are already used for notice to work permits, for mineral exploration, for major Mines Act permitting and that work, from the notice of staking the claims, and of course that’s the subject of the court case.”
Meetings with the First Nations Leadership Council have already begun on the topic, Osborne added.
According to the Gitxaała Nation, the BC Human Rights Commissioner is intervening in the case, while the First Nations Leadership Council, four individual First Nations, a group of non-profits and two mineral exploration businesses are expected to argue against the current free entry rules.
Gitxaała Nation is roughly 60 kilometres south of Prince Rupert in unceded territory that has been occupied for more than 10,000 years, according to its website. Its village of Lax Klan (Kitkatla) is home to 450 citizens.
“Today, anyone with a computer and a $25-Free Miner Certificate can pay $1.75 a hectare to acquire exclusive rights to minerals on the traditional territory of the Gitxaała Nation,” said Gitxaała Chief Coun. Linda Innes.
“The province has allowed, and even encouraged the use of an simple online system for automatically granting mineral claims, which means it takes little more than the click of a mouse.”
The petition asks the courts to quash seven mineral claims on Banks Island, south of Prince Rupert, and for the court to suspend claim staking in Gitxaała territory.
Innes said the B.C. government’s case against their petition includes a claim that the issuing of mineral rights does not trigger a duty to consult.
“It breaches the B.C. government’s own legal obligation and commitments,” Innes said.
“Gitxaała asking the court to declare that B.C. has failed to meet its duty to consult and accommodate us, and that the B.C. government’ regime of automatically granting mineral rights online is inconsistent with the province’s constitutional obligation.”
— with files from The Canadian Press
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