A Historic Legal Decision is Changing Mines

Gitxaała court ruling forces BC to reform its mineral tenure system

Watershed Sentinel staff

Gitxaala rally at Vancouver Law Courts. Credit: Karissa Chandrakate, RAVEN Trust

The “free entry” mining system, in place since BC was a British colony, is about to be revamped. Last year, the Gitxaała Nation won a landmark legal case that will compel the Province to create a new framework to properly consult First Nations when staking mining claims. The current system allows individuals and corporations to buy subsurface mineral rights without regard for First Nations land and consent; anyone with a “free miner” permit can stake claims online for a small fee.

After years of litigation, the court ruled that the Province has until January 2025 to reform the mineral tenure system. BC Premier David Eby has since moved to shut down new mining claims and active mining in Gitxaała and Ehattesaht territory. But even as the case moved through the courts, BC carried on approving new mining permits, with dire results.

In one case, a single mine on Gitxaała land was responsible for over a dozen environmental offenses, most of them involving excessive discharges of zinc-laden wastewater into salmon streams. In a rare twist, the CEO responsible was tried, convicted, and sentenced in a BC court. In July 2023, Benjamin Mossman, former CEO of Banks Island Gold, was found guilty and fined $30,000 for thirteen environmental violations at the Yellow Giant Mine on Banks Island.

Gitxaała Chief Councilor Linda Innes told The Northern View that the Nation is pleased Mossman was held to account, but disappointed in what she called an insufficient punishment.

“The Yellow Giant Mine started with mineral claims granted without notice, consultation, or consent,” Innes said. “The recent BC Supreme Court ruling on Gitxaała’s challenge to BC’s mineral tenure system confirms that granting mineral claims without consultation is unconstitutional.”

“While Mr. Mossman is certainly accountable for the horrendous example of what happens when bad mines are allowed to operate without clear oversight and accountability to Indigenous Rights and Title holders, these shamefully-light administrative penalties amount to nothing but small fractions of the costs of correcting the devastation left behind,” Innes said.

We must stop the destruction and allow the land to breathe.

The Province estimates the Banks Island cleanup will cost $2.2 million, though Innes said the Nation fears the mine’s toxic legacy will cost much more than that. “The pollution has devastated Banks Island’s salmon-rich creeks and near-shore areas and continues to this day,” she said.

When it comes to cleaning up mining “infractions,” it’s almost always taxpayers who bear the brunt of the bill. But it seems that tide may be turning.

According to ReformBCmining.ca, the interim Major Mines Reclamation Security Policy is a move toward making sure mine operators pay for reclamation. But the policy must be strengthened and enacted in law to ensure that polluters pay for all environmental damage they cause. The government must also establish an industry-pooled fund to pay for major spills and disasters, and for cleanup when companies go bankrupt.

With this in mind, seventeen organizations are circulating an open letter thanking the premier for calling a halt to mines on Gitxaała and Ehattesaht lands, but also calling out the NDP government’s combative treatment of First Nations when natural resources are at stake.

“Interim measures halting mineral claim registrations and mining activities within the territories of the Gitxaała and Ehattesaht First Nations … represent a crucial step towards meaningful reconciliation, where communities have a secure future with healthy forests and wildlife, clean water and thriving livelihoods,” the letter reads.

“Despite prevailing in court, Gitxaała and Ehattesaht were not granted any tangible relief on the ground,” the letter continues.

“Perhaps the most egregious example of this was the registration of thirty mining claims in or on the edge of Ehattesaht territory since the launch of the court case to fight this exact practice.

“It is urgent to depart from centuries-old colonial practices that delay and deny recognition of Indigenous rights, such as the free entry mining claim system…. The current system also puts sustainable revenue sources and local communities at risk by allowing activities incompatible with local uses, such as drilling in the middle of recreation and guiding tenures.”

We must stop the destruction and allow the land to breathe. That’s the message of a group of ten First Nations who are leading their own legal case in Treaty 9 territory, Ontario. The Indigenous Chiefs of Ontario are calling for a one-year pause on all mining claims on their territories in the face of rampant mining speculation. But again, the Province carries on issuing mining tenures without the consent of 133 First Nations.

The Province of Ontario launched an online system for mineral claims in 2018, allowing individuals and mining companies to stake claims for $50 without First Nations consent.

The First Nations intend to prove in court that, in the oral version of their Treaty, they were assured that they could use their lands as they always had. The Crown, however, interprets the Treaty as a surrender of lands. A win in court will give First Nations in Treaty 9 greater decision-making authority over mining and other resource extraction on their territories.

According to a statement, “Anyone staking a claim in Ontario automatically receives land rights to the area … Prospective miners can apply for exploratory permits when they have a claim, giving them the right to cut trees, dig into the ground with bulldozers and excavators, and abandon sites with little remediation of the land: all without consulting or even notifying First Nations on whose lands all this is happening.

With files from The Northern View, RAVEN Trust, and ReformBCMining.ca

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