Sm'ooygit Nees Hiwaas et al v BC mineral tenure case heard in BC Supreme Court

The hearing of Gitxaała Nation’s ground-breaking case challenging the provincial government’s “free entry” mineral claim staking regime began this month on April 3. For more than two weeks, Mr. Justice Ross of the BC Supreme Court heard arguments from Gitxaała, numerous intervenors and counsel for the Attorney General of BC, as well the Ehattesaht First Nation in a related legal case being heard at the same time.

Gitxaała case 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 or consultation to Gitxaała. In the words of Gitxaała Sm’ooygit Nees Hiwaas (Matthew Hill): “By giving away the mineral rights that are part of our territory, the Province has broken both our laws, and their own.” 

The impacts of BC’s gold rush era mineral claim-staking regime on the inherent title, laws and governance rights of Gitxaała and Ehattesaht  are at the heart of this case, which is the first to substantively consider the effect of BC’s Declaration on the Rights of Indigenous Peoples Act as human rights legislation in BC.  

The significance of DRIPA as a human rights statute was powerfully articulated by legal counsel for the Human Rights Commissioner. As an intervenor, her role was to assist the court and is independent from the parties. You can read her submissions here.

Representatives of other intervenors in the case shared their perspectives as follows:

Naxginkw (Tara Marsden), Gitanyow Hereditary Chiefs

“The provincial government has failed to prioritize mineral tenure reform, despite decades of concerns brought forward by First Nations, including Gitanyow. We have been forced to the courts in support of Gitxaała to seek to overturn a legislative colonial relic that threatens our precious salmon ecosystems and our right to decide how our lands are used.”

Kukpi7 Justin Kane, Ts’kw’aylaxw First Nation

“Ts’kw’aylaxw is happy to be part of this case and to stand with Gitxaała in challenging BC’s outdated mineral claim system, which clearly needs to change. With a law like DRIPA in place, we shouldn’t even be here – but despite the passing of BC’s legislation, mining claims continue to be granted without our free, prior and informed consent. With DRIPA, the law has been written, and now we hope the courts start holding the Province accountable.” 

Chief Aileen Prince, Nak’azdli Whuten

“The total lack of consultation of Nak’azdli and other First Nations before mineral rights are granted in
BC is completely unacceptable, unconstitutional and inconsistent with the United Nations Declaration
on the Rights of Indigenous Peoples. It is disappointing, to say the least, that BC is arguing that its
commitment to align laws with the UN Declaration is not enforceable in court.”

Nuskmata (Jacinda Mack), Mining Spokesperson, Nuxalk Nation:

“Nuxalk Nation stands with Gitxaała in this important work to protect people, lands and waters from
outdated and harmful mining practices that impact us all. We applaud the leadership that Gitxaała is
taking to address and correct BC's ‘mining at all costs’ system and blatant disregard for human rights.
We stand with them as an intervenor, and as relatives on the front lines of our unceded Indigenous

Jamie Kneen, MiningWatch Canada and Co-Chair, BC Mining Law Reform Network

“BC’s Mineral Tenure Act is the root cause of a host of problems. It disregards Indigenous rights and allows claims to be staked in almost anyone’s backyard, without their knowledge, much less consent. It exempts claims from land use planning requirements, ignores the voice of local governments, and makes the creation of protected areas much more difficult and more expensive. Gitxaała’s litigation presents an opportunity for the Province to respect the UN Declaration on the Rights of Indigenous Peoples, and to address these major problems for the benefit of local communities and the environment.”

Regional Chief Terry Teegee, British Columbia Assembly of First Nations

“The Province of BC is trying to have it both ways, by making political commitments to reform the Mineral Tenure Act while fighting reform in the courtroom. In this era of the Declaration on the Rights of Indigenous Peoples Act, this is unacceptable. The First Nations Leadership Council welcomes the opportunity to provide the court with its on-the-ground perspective on the proper interpretation of DRIPA, and by extension the current domestic significance of UNDRIP in British Columbia.” 

Grand Chief Stewart Phillip, Union of BC Indian Chiefs

“In this day and age, the fact that someone can huddle over their keyboard in a dark basement and file mineral claims over tens of thousands of acres of Indigenous lands – without any consultation whatsoever, and without any notification – is a complete, egregious violation of the Declaration Act, and it’s unacceptable. The passing of the Declaration Act represented a commitment to bring the Province’s laws in line with the UN Declaration, including the right to free, prior and informed consent. I applaud the Gitxaała people for their courage and visionary leadership in this case, which gives us hope for progressive change in the province of British Columbia. We expect the Province’s submissions to the Court to be fully aligned with the UN Declaration.”

The final three days of the hearing will be held May 3-5 in BC Supreme Court.

Top photo: Alexis Stoymenoff

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