‘We Owe it to Our Children, Those Yet Unborn Within the Gitxaała Nation’

The Gitxaała Nation is standing up to protect future generations by challenging BC’s process for granting mineral claims in their territories — a process originating in the gold rush era that leaders say breaks both Gitxaała and Canadian laws. 

The case will address the province’s “duty to consult” the Nation about activities that impact its territories, rights and title and wellbeing, and calls on the Crown to quash seven active mineral claims in the heart of Gitxaała territory, review and change the current process for granting mineral claims, as well as meaningfully interpret the Declaration on the Rights of Indigenous Peoples Act (DRIPA).

The Nation’s potentially precedent-setting legal challenge against the province’s “free entry” mineral claim staking regime commenced on April 3. The proceedings, which will take place in the BC Supreme Court over the next two weeks, kicked off with a press conference held by Gitxaała hereditary and elected leadership, matriarchs, community representatives, other interveners and supporters.

Between 2018 and 2020, BC granted multiple mineral claims in the heart of Gitxaała territory, on Lax k’naga dzol (known in English as Banks Island), without any consultation with the Nation about the effects on the area, as well as the impacts on their title and rights. The Gitxaała claim that this lack of consultation, accommodation and consent breaches the Crown’s constitutional duties and doesn’t align with the standards of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including the principle of “free, prior and informed consent.”

“We are taught to never abuse any part of our land or any part of our territory,” says Sm’ooygit (Hereditary Chief) Nees Hiwaas (Matthew Hill) during the press conference. “They’re still coming, they’re still dishonest in the process. Government regulations are weak, if you damage our territory, they turn a blind eye.”

The Gitxaała, the “People of Salt Water,” have occupied and governed their territory for thousands of years, in accordance with their laws and governance system. They have never given up their title, authority, jurisdiction, governance or rights. The Lax k’naga dzol, Banks Island, is an area of extensive use of the Gitxaała people — fishing, trapping, harvesting use, as well as an area of cultural, spiritual and sacred significance. 

“The cultural, emotional and spiritual impacts of the mining activities is very heavy,” Sm’ooygit Nees Hiwaas says. Gitxaała Elected Chief Councillor Linda Innes says BC has “allowed and even encouraged the use of the simple online system for granting mineral claims, which means it takes little more than the click of a mouse to get mineral rights, regardless of the rights of First Nations.”

“What benefits you reap from our ancestors’ laws in ensuring and protecting these resources. We have to put in place the mechanisms now that will benefit future generations, restore who we are, restore our lands, restore our Spirits, to ensure the future generations benefit,” says Sm’ooygit Nees Hiwaas. Photo by Emilee Gilpin

‘Doctrine of Discovery is alive and well in BC’s mineral claims taking regime’

In order for a person to acquire a mineral claim, they must be a “free miner,” which could be any Canadian corporation, partnership or person over 18 who resides or is authorized to work in Canada and requests a free miner certificate and pays a small fee. A free miner can acquire a claim on the Internet by going to the Mineral Titles Online Registry, selecting cells on a map and paying $1.75 per hectare with a credit card. No Crown consultation or engagement of any kind occurs with potentially impacted Indigenous Nations.

“In its legal arguments, BC has the audacity to say giving away mineral rights doesn’t trigger their duty to consult,” Innes says. “We disagree. The system is inconsistent with its constitutional duties and with UNDRIP, which BC has committed to implement.”

In June 2022, the Ehattesaht First Nation filed a similar judicial review, challenging mineral claims in its territories. The parties agreed for the two cases to be heard by the Court at the same time. There are a number of groups intervening (making legal arguments on important issues) in the legal challenge against BC’s “free entry” mineral tenure regime, including the First Nations Leadership Council (The BC Assembly of First Nations, the First Nations Summit, the Union of BC Indian Chiefs), the Ts’kw’aylaxw First Nation, the Nuxalk Nation, Gitanyow Hereditary Chiefs and Nak’azdli Whut’en First Nation, the Human Rights Commissioner for BC, a coalition of non-governmental organizations, First Tellirirum Corp. and Kingston Geoscience Ltd., and a coalition of mining industry associations. 

These proceedings will be the first time that the BC Supreme Court is being called on to interpret DRIPA. BC has promised to modernize the Mineral Tenure Act in its DRIPA Action Plan and in the Minister of Energy, Mines and Low Carbon Innovation Josie Osborne’s mandate letter, but despite the political commitments, BC is arguing that DRIPA is not enforceable in court, says Jessica Clogg, director and senior counsel at West Coast Environmental Law and a member of Gitxaała’s legal team. 

Clogg says the case will determine whether DRIPA has immediate legal effect that can be enforced by the courts, or whether it “simply amounts to promises of future action enforceable only in the political realm.”

“A lot was said last week about the Vatican’s long overdue repudiation of the so-called ‘Doctrine of Discovery’… among the policies and doctrines that UNDRIP have called racist, scientifically-false, legally invalid, morally condemnable and socially unjust,” says Clogg. “Regrettably, the philosophies underlying the Doctrine of Discovery are alive and well in today’s BC’s mineral claims staking regime, a regime through which the Crown granted mineral rights to the respondents in this case through an automatic system, as if they, their inherent rights, their inherent title, their laws, did not exist.”

Clogg says that if the Nation is successful in their challenge, “we will begin to see the end of the archaic practice of granting mineral claims without consultation or consent.”

“This case can be precedential in two forms: it is the first challenging BC’s free entry mineral claims staking system, and if in fact the court does declare that the Mineral Tenure Act is inconsistent with DRIPA, it will be a first for the court, and we hope the court will make it clear that BC must consult with Gitxaała,” Clogg says. 

The Gitxaała are requesting that the Court require the province to suspend automated grants of mineral claims in their territory.

“We’re asking the Court to overturn the current mineral claims on Banks Island and to reform the Mineral Tenure Act regime, to protect the interests of our Nation and the future interests of those yet to be born,” says Innes. “We owe it to our children, to those yet to be born within the Gitxaała Nation. We do it with one voice and in the Spirit of being of one heart.”

Innes says that the Gitxaała will not stop until they see changes in BC’s laws and until the mineral claims in Banks Island are quashed. “We will not accept any less, because this is what Gitxaała law requires,” she says.