A Vancouver Supreme Court judge has found that the province’s Chief Gold Commissioner (CGC) has a legal obligation to guarantee First Nations are consulted before mining permits are administered.
The Province were given 18 months to amend its online mining permit system to ensure First Nations rights are not bypassed, bringing to a close a historic court challenge by Gitxaała and Ehattesaht First Nations.
Justice Alan Ross presided over the case, which took place at the Vancouver Supreme Court on Sept. 26. Ross agreed with the petitioners that B.C.’s online system, which had no structure for consultation with First Nations, was a breach of the Crown’s obligations.
The two nations claimed that the current Mineral Tenure Act (MTA), last amended in 2012, does not uphold their rights as described in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the provincial declaration (DRIPA). They particularly pointed to the “free, prior, informed consent” provision of the charter.
However, Justice Ross did not recognize the petitioners’ requests for injunctions or quashing of mining plans, while also dismissing the admissibility of DRIPA and UNDRIP as legal frameworks.
Gitxaała Chief Councillor Linda Innes said the band was vindicated by the judge’s verdict, though they were disappointed that their pleas for injunctions and halts on potential mining projects were ignored.
“While the Court suspended its declaration for 18 months, the case demonstrates that immediate overhaul of BC’s mineral tenure regime is required,” she said. “We deeply regret that the Court did not set aside the mineral claims we challenged in this case, and leaves our territory open for continued mineral claims staking without consultation for the time being.”
To be a “free miner” and apply for mining permits, applicants only need to be over 18, legally able to work in Canada and pay a nominal fee. Both individuals and corporations are eligible to apply.
The local land in dispute is on Lax k’naga dzol, or Banks Island, just south of Prince Rupert. Both Ehattesaht and Gitxaała asked for the current mining plans, which they had not been consulted on, to be cancelled.
Ehattesaht First Nation, approximately 100 km northwest of Tofino, made a similar claim with regard to mining permits on their claimed territory. The two nations agreed to present their claims at the same hearing in 2022.
According to the band, the automatic nature of B.C.’s process means First Nations and their claimed territories get skipped over without any kind of consultation.
The band’s initial petition details two claims on Banks Island between 2018 and 2020, which they argue is a “breach of the Crown’s constitutional duty.”
Free miners Christopher Ryan Paul and Oliver John Friesen were named as one of the five respondents in the Crown’s decision, with the pair holding five claims with a total of 1,200 hectares on Banks Island.
The province argued that under the MTA, which dictates the province’s mining laws, they had no obligation to disclose mining permit allocation to First Nations with land claims.
Whether the MTA infringes on Indigenous peoples’ rights was the main question, according to Justice Ross.
“The core issue in this case is whether the operation of the current mineral tenure system adversely affects an Aboriginal claim or right,” he said during the hearing.
Justice Ross found that without consultation, mining operations could demolish spiritual sites of cultural importance to Gitxaała and Ehattesaht, therefore infringing on their rights. He also agreed that unconsulted mining projects would potentially result in the physical destruction of the First Nations’ territories
“I find that the allowance of mineral claims without consultation creates an adverse impact on the petitioners’ Aboriginal rights regarding their cultural and spiritual beliefs,” he said during the judgment.
The Gitxaała First Nation claims this was the first time DRIPA was fully interpreted in the B.C. Supreme Court. While Justice Ross only used DRIPA as an “interpretive aid,” Gitxaała Sm’ooygit Nees Hiwaas (Matthew Hill) is hopeful the inclusion of DRIPA will set a precedent for future decisions.
“While Gitxaała is concerned that the Court did not give stronger treatment to DRIPA in this case, and we are considering our options, with this decision the status quo has profoundly shifted. Consistency with UNDRIP is a must for the required overhaul of BC’s mineral tenure regime – there’s no going back.”
The court saw many intervenors – parties who were not directly involved in the case though are granted the ability to make arguments on the case.
Some of the intervenors included the First Nations Leadership Council, mining industry associations and the Human Rights Commissioner for B.C.
By Seth Forward, Prince Rupert Northern View, Local Journalism Initiative Reporter