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Hearings Begin in Gitxaała Nation’s Legal Challenge to BC’s Mineral Tenure Act 

Nation heads to BC Supreme Court for two-week hearing in landmark mining case – the first to consider the enforceability of BC’s Declaration on the Rights of Indigenous Peoples Act

VANCOUVER / xʷməθkʷəy̓əm, Skwxwú7mesh & səlilwətaʔɬ territories

Nation heads to BC Supreme Court for two-week hearing in landmark mining case – the first to consider the enforceability of BC’s Declaration on the Rights of Indigenous Peoples Act.  

Today the British Columbia Supreme Court will begin hearing arguments in Gitxaała Nation’s ground-breaking legal challenge against the provincial government’s “free entry” mineral claim staking regime. The case is the first of its kind in BC, and seeks to overturn multiple mineral claims that were granted by the Province on Lax k’naga dzol, (Banks Island) in the heart of Gitxaała territory, without consent, consultation or even notification to Gitxaała.

Gitxaała’s case argues that BC’s outdated practice of granting mineral claims without Indigenous consultation or consent is inconsistent with constitutional requirements as well as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which BC has legally committed to implement. The case will be heard alongside a related legal challenge filed by the Ehafesaht First Nation.

“Gitxaała smgyigyet (hereditary leaders) have the responsibility to manage and protect our territories and resources according to the ayaawx (Gitxaała laws). Our ayaawx expresses, among other things, the sacredness of our territory, and the need to treat the environment with the greatest respect and to ensure proper treatment of our resources,” said Gitxaała Sm’ooygit Nees Hiwaas (Mafhew Hill).

“By giving away the mineral rights that are part of our territory, the Province has broken both our laws, and their own,” Nees Hiwaas said.

BC’s current Mineral Tenure Act permits anyone with a free miner certificate to acquire mineral claims online through an automated system in First Nations’ territories, without their consultation or consent.
Since Gitxaała launched the case in October 2021, the provincial government has made public commitments to reform the mineral tenure regime, yet it has not changed its legal position and continues to fight Gitxaała in court.

This closely-watched case will be one of the first to interpret BC’s Declaration on the Rights of Indigenous Peoples Act (DRIPA). In addition to Gitxaała, the Court will hear from the Ehafesaht, as well as a range of intervenors arguing against BC’s “free entry” mineral tenure regime, including the First Nations Leadership Council, four individual Indigenous nations, six environmental and community groups and two mineral exploration businesses. The BC Human Rights Commissioner is also intervening in the case.

“Despite the reported progress and new relationships promised when the government signed the Declaration on the Rights of Indigenous People Act into law, the Province continues to give away mining rights in our territory without our consent. This impacts our ownership, governance and use of our
lands, and interferes with our right to make management decisions and to choose our own priorities,” said Gitxaała Chief Councillor Linda Innes.

“While proudly announcing its commitments to reconciliation, the Crown continues to argue in court
that they have no legal obligation to make good on those commitments – and that is a problem that should be of serious to concern to all residents of British Columbia, not just Gitxaała,” Innes said.

In addition to sekng aside existing mineral claims that are part of the court proceeding, Gitxaała is
asking the court to suspend claim staking in Gitxaała Territory.

The full case will be heard over two weeks at the BC Supreme Court, from April 3-14, 2023.

Media contact: James Herbert, Senior Advisor, Gitxaała Territorial Management Agency

Additional resources: Legal backgrounder attached to PDF link below. 

Download the PDF and Legal Backgrounder

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