B.C. First Nations chiefs celebrate mining exploration court decision

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Leaders from the Gitxaała and Gitanyow First Nations were celebrating a historic victory this week after the B.C. Supreme Court ruled the province’s laws on mining exploration did not meet the Crown’s duty to consult.

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The court challenge targeted old laws that let exploration companies stake claims without prior consent, often for as low as $60 a claim.

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The ruled found that the duty to consult is triggered when a mining stake is claimed in the province.

For Naxginkw, sustainability director for the Gitanyow hereditary chiefs, the decision was a “mixed bag.”

There was relief on the duty to consult.

But Naxginkw, also known as Tara Marsden, said there was disappointment at what she called the court’s “really minimal interpretation” of the United Nations Declaration on the Rights of Indigenous Peoples and the Declaration on the Rights of Indigenous Peoples Act’s legal weight on the law on other laws in the province.

Naxginkw also criticized court’s permission to allow mineral exploration companies to continue operating under the old law for another 18 months while the province makes changes.

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The court’s decision sets a precedent in the province for a “very narrow interpretation” of UNDRIP, she said.

B.C.’s Mineral Tenure Act was passed during the Gold Rush in the late 1800s, Jessica Clogg, one of the lawyers representing the Gitxaała Nation, said in a previous interview.

As time progressed, it has become even easier for mining claims to be staked. In the past, miners had to physically put a stake in the ground. Now, with a few clicks on an online portal, stakes can be made from the comfort of a desk, Clogg explained.

“Gitxaała has won an important victory for every (First Nation) across B.C.,” Simogyet Malii, a Gitanyow hereditary chief, said in a news release. “The gold rush is over. Industry and government must align with the new era of sustainable mining that respects Indigenous rights to consent.”

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The case was led by the Gitxaała Nation, with Gitanyow an intervener.

Gitxaała, on the northern coast of B.C., based its legal challenge on the province’s 2019 Declaration of Indigenous Peoples Rights Act, which enshrines the United Nations Declaration on the Rights of Indigenous Peoples in B.C. law.

But Justice Alan Ross ruled that the law “does not implement UNDRIP into domestic law in B.C.” nor does it “create justiciable rights.”

Instead, the law was used by the judge as an “interpretive aid.”

“Here we have governments consistently trying to water down international standards,” Naxginkw said.

Naxginkw does not think the province will appeal to the Supreme Court of Canada. However, the First Nations may consider appealing the judge’s interpretation of the B.C. law.

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With files from Abdul Matin Sarfraz

Matteo Cimellaro is a Local Journalism Initiative reporter with Canada’s National Observer. The Local Journalism Initiative is funded by the Government of Canada.

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