On a grey January morning, a crowd surrounded two Gitxaała chiefs on the steps outside BC Supreme Court in Vancouver.
Carrying signs reading “Mining Justice Now,” “Stop the Plunder!” and “Reform BC Mining,” people from as far as Terrace and Prince Rupert gathered in support of an Indigenous-led challenge that stands to reform mining in BC and give legal backing to Canada’s adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Gitxaała’s justice-seeking journey is part of a sweeping shift in laws in this country – home to more than half the world’s mining companies. Canada is a preferred jurisdiction in part because the country has allowed the rights of Indigenous Peoples to be ignored, offering up weak environmental restrictions and even weaker enforcement. Canada has also provided a well-regarded flag as convenient cover for companies operating with impunity in places like Congo and Sudan.
Chief Linda Innes told the assembled crowd, “Gitxaała has had a long history of bad mining practices within our territory. Today, the harm continues. We have learned the hard way that this is a result of BC’s antiquated Mineral Tenure Act that allows mineral staking in our territory without consultation or consent.”
Robed and crowned with cedar, hereditary chief Nees Hiwaas stood by Innes’ side. Responsible for the stewardship of Banks Island – known to Gitxaała as Lax k’naga dzol – Nees Hiwaas shared his experience of the Yellow Giant goldmine disaster that triggered the legal challenge he’d come here to fight.
“Companies need to come to the Nations first and to put the needs of the community ahead of the need to develop their projects. Only then can the community give their consent.” —Chief Linda Innes.
The Nation was never consulted before Banks Island Gold staked a claim and moved onto their territory. The company obtained a mining permit over the Nation’s objections, then proceeded to run roughshod over the delicate island ecosystem. Despite repeated calls to the Province to take direction from the Nation, the company allowed tailings and effluent to leach into the watershed and poison salmon-bearing streams, lakes, and wetlands. Instead of cleaning up the site, the company filed for bankruptcy, leaving behind a tangle of equipment and a gaping hole in Gitxaała’s breadbasket.
Banks Island Gold ultimately breached 33 conditions of their permit and left Gitxaała with an abandoned mine site and ongoing pollution.
In 2021, when they learned of a swath of new mineral claims on Lax k’naga dzol, Gitxaała launched a legal challenge. That same year, Canada passed its own UN Declaration Act, joining BC in enshrining into law the principles of free, prior and informed consent. But will it remain up to First Nations to enforce them?
Reshaping Indigenous rights
Together with Ehattesaht Nation, Gitxaała won an important victory in 2023. The BC Supreme Court declared BC was breaching its constitutional duty by failing to consult First Nations prior to granting mineral claims. The Nations successfully argued that the Mineral Tenures Act – which allows anyone with $25 and a laptop to stake claims on Indigenous territories without informing the Nation – was unconstitutional. The court gave the Province 18 months to fix its system.
But the 2023 ruling stopped short of finding that BC’s mineral regime is inconsistent with UNDRIP. Because BC has passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA), such recognition would trigger a sea change in how the Mineral Tenures Act and all laws in the province are interpreted and enforced. It would give Nations recourse if their rights to free, prior, and informed consent on their territories are violated.
Instead, the Province continues to argue that DRIPA is not enforceable through the courts. Indigenous Peoples say that given that interpretation, DRIPA is toothless: nothing more than “a plan to make a plan.” Nations are back in court insisting that the government must do better.
Gitxaała’s journey for justice
Nees Hiwaas described the the long trip south from their northwestern archipelago home: “When we left our community, we were escorted by orcas on the waters. Outside Rupert Harbour, humpback whales were there to greet us. We treasure them: as we encounter them, we acknowledge them.”
Thanks to Indigenous leadership, British Columbia is busy rewriting its Mineral Tenures Act so that consultation will be required before staking a mineral claim. No longer will prospectors come onto land to drill, dig, and set off runaway speculation without first sitting down with Indigenous Nations. This is all too important at a time when the race for critical minerals to power AI and renewables has industry pushing for faster regulatory reviews and permitting decisions.
“Companies need to come to the Nations first and to put the needs of the community ahead of the need to develop their projects. Only then can the community give their consent,” says Chief Innes.
The courts may choose to recognize that First Nations have the right to refuse projects in territories where they have other priorities – like Banks Island, where salmon hatcheries and stream rehabilitation are beginning to repair some of the damage caused by Yellow Giant gold.
“It’s salmon, not gold, that is the real wealth of our nation,” says Nees Hiwaas.
Industry has long interpreted the legal duty to consult Nations under Section 35 of the Constitution Act of 1982 as an exercise in finding the right balance of persuasion (often using cash-based benefit agreements) and brute erasure.
But in an era of UNDRIP, industry can no longer rely on a “minerals first” approach by legislators. Supported by RAVEN Trust, which is fundraising to help cover Gitxaała’s costs, and intervenors from the BC Civil Liberties Association, BC Mining Law Reform, the Assembly of First Nations, and the Union of BC Indian Chiefs, there is a strong consensus that it’s high time BC gets its own legal house in order.
Andrea Palframan is an activist, organizer, and communications octopus living on the unceded territories of the Hul’q’umi’num and SENĆOŦEN-speaking peoples, also known as Salt Spring Island.
