LACH KLAN / KITKATLA, Gitxaała Territories, BC – Today, the BC Supreme Court released its decision in Gitxaała Nation’s legal challenge against the provincial government’s “free entry” mineral claim staking regime.
The case, heard over several weeks in April-May 2023, sought to overturn multiple mineral claims granted by the Province on Lax k’naga dzol (Banks Island) in Gitxaała territory, without consent, consultation or even notification to Gitxaała Nation. Under the current regime, BC grants mineral claims to free miners through an automatic online system.
In the decision, Mr. Justice Ross held that the Chief Gold Commissioner’s position, that it was not possible to consult Indigenous groups prior to granting mineral rights, was “simply wrong.” The Court issued a declaration that the current online system for automatic registration of mineral claims, without a system for consultation, breaches the constitutional obligations of the Crown, giving BC 18 months to design a new, constitutionally valid regime.
Gitxaała Chief Councillor Linda Innes made the following statement in response to the decision:
“The Court’s decision makes clear what we knew all along: BC owes a duty to consult Gitxaała and other Indigenous nations prior to granting mineral claims in our territories, and it is breaching that duty. The provincial government must now act quickly to eliminate its unjust practice of selling off our rights without our consultation or consent.”
“While the Court suspended its declaration for 18 months, the case demonstrates that immediate overhaul of BC’s mineral tenure regime is required. 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.”
The judgment is also the first to substantively consider the legal effect of BC’s Declaration on the Rights of Indigenous Peoples Act (DRIPA). The Court declined to make a decision about the consistency of the BC mineral claim staking regime with the UN Declaration. Instead, the Court emphasized the legislative commitment in DRIPA to consult and cooperate with Indigenous peoples in identifying and taking all measures necessary to align laws with UNDRIP.
Gitxaała Sm’ooygit Nees Hiwaas (Matthew Hill) said:
“As this case makes clear, BC’s mining laws are in urgent need of reform. The provincial government has finally acknowledged this fact, having committed to overhaul the Mineral Tenure Act after the launch of Gitxaała’s legal challenge. Now, the Court has confirmed the legal imperative for change.”
“While Gitxaala 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”.
For more information, please contact:
Gavin Smith, Gitxaała legal counsel, 604-601-2512, gsmith@wcel.org
See Reasons for Judgment attached.
April 2023 legal backgrounder on the Court hearings also attached
