Gitxaała pursues a partial appeal in its mineral tenure litigation

Gitxaała Nation members gathered outside the Vancouver courthouse, May 2023 (Photo: Alexis Stoymenoff)

On September 26, the British Columbia Supreme Court issued its ruling in the case of Gitxaała v. British Columbia (Chief Gold Commissioner), declaring that the provincial Chief Gold Commissioner’s process for granting mineral claims automatically online, without a system for consultation, breaches BC’s constitutional obligations to Indigenous Nations. That decision represents a major win, heralding the end of the status quo for “free entry” mining in British Columbia after more than 150 years of colonial harm.

The decision was not a complete victory, however. The Gitxaała Nation recently announced that it has launched a partial appeal. Gitxaała is not appealing the Court’s declaration that BC is breaching its constitutional duties, nor has the BC government appealed that declaration. Rather, Gitxaała has focused its appeal on two overarching issues.

1) Addressing mineral claims in Gitxaała territories

First, the Court refused to quash or set aside the specific mineral claims challenged by Gitxaała in this case, and declined to issue an injunction against further automatic grants of mineral claims. Instead, the Court temporarily suspended the declaration that the Chief Gold Commissioner is breaching BC’s constitutional duties, giving the Province 18 months to design a new regime. 

A suspended declaration allows BC to continue granting mineral claims automatically online for another year and a half. It also provides no practical relief to Gitxaała for mineral claims already granted without consent on Lax k’naga dzol (Banks Island), despite the fact that Gitxaała pursued a hard-fought, multi-year judicial review to successfully convince the Court that BC failed to live up to its constitutional duties. In the appeal, Gitxaała is asking the Court to quash the challenged mineral claims on Banks Island and grant an injunction to prevent further claims from being granted in its territories without consultation. 

In the words of Sm’ooygit Nees Hiwaas (Matthew Hill): 

“There has been no consequence to the Province and the ‘free miners’ for violating our ayaawx (Gitxaała law) and Canada’s Constitution. We do not accept that injustice.” 

Dealing with mineral claims on Banks Island is all the more important in the context of the lasting harm to Gitxaała caused by the Banks Island Gold disaster, which has so far resulted in $30,000 in environmental convictions against the company’s executive, while the much larger cost of cleaning up the mess is still unresolved.

2) Applying DRIPA and UNDRIP

The second focus of the appeal is the Court’s findings regarding the legal impact of the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”). The case is the first to substantively consider the effect of this new law, enacted in 2019 as part of the government’s commitment to implement the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in BC.

It’s worth noting, before summarizing the legal arguments, the great political fanfare with which BC enacted DRIPA. Then-Premier John Horgan stated to the Legislature: “B.C. is the first province to put in place the declaration on the rights of Indigenous peoples, to bring the UN declaration into law.” The provincial government press release regarding the enactment of DRIPA states: “Today, we have made history. British Columbia is the first province in Canada to enshrine the human rights of Indigenous peoples in law.”

In contrast, during Gitxaała’s case, the BC government argued that the requirement under section 3 of DRIPA that “the government must take all measures necessary to ensure the laws of British Columbia are consistent with the [UN] Declaration” is not enforceable in Court. The BC government further argued that DRIPA did not enshrine the human rights articulated in UNDRIP in law in BC, asserting that UNDRIP remained entirely non-binding. It is impossible to reconcile the BC government’s political statements about DRIPA with what the BC government said in Court, when push came to shove.

Unfortunately, the Court accepted BC’s arguments, finding that there is no role for the Court in enforcing DRIPA s. 3, and concluding that DRIPA produced no “substantive outcomes” when it comes to the application of UNDRIP to BC’s laws. Gitxaała is appealing on both these issues. 

In the words of Gitxaała Chief Councillor Linda Innes

“The Court’s decision is a result of BC’s efforts to score political points on DRIPA while avoiding any legal accountability – but DRIPA must be more than an empty political promise.”

Significantly, in early November, the Québec Superior Court made precisely the opposite finding regarding the effect of the federal United Nations Declaration on the Rights of Indigenous Peoples Act, which has almost identical wording to BC’s DRIPA on the relevant issues. 

In the case of R. c. Montour, the Québec Superior Court found that “The [federal] UNDRIP Act’s content also demonstrates that the UNDRIP is an interpretative tool of Canadian law having the weight of a binding international instrument”. The Court concluded that the federal UNDRIP Act, and Canada’s endorsement of UNDRIP “without qualification,” engaged a “presumption of conformity” with UNDRIP in interpreting laws including section 35 of Canada’s Constitution, which enshrines protection of Aboriginal and treaty rights.

The glaring discrepancy between the rulings in Montour and Gitxaała suggests that the BC Supreme Court was right when it noted in its judgment in Gitxaała’s case: “a higher court will ultimately determine the effect of DRIPA.” West Coast Environmental Law will continue to assist in representing Gitxaała as it seeks a stronger application of DRIPA and UNDRIP, and a meaningful resolution of the on-the-ground mineral claim issues in its territories.

Top photo: Gitxaała Nation members gathered outside the Vancouver courthouse, May 2023 (Photo: Alexis Stoymenoff)

Gavin Smith, Staff Lawyer