B.C. First Nation goes to court over automatic mineral rights
A B.C. First Nation is challenging in court an online registry the province uses to automatically grant mineral rights on its territory.
The Gitxaala have filed a petition to the B.C. Supreme Court seeking a judicial review, arguing that the process doesn't require the government to consult with the First Nation and simply grants the claim.
“The fact that B.C. still grants mineral claims with total disregard for Indigenous nations like Gitxaala is a damaging relic of colonialism that has no place in the present day,” hereditary Chief Matthew Hill said in a news release. “We will not allow this to continue in Gitxaala territory and that is why we've launched our case.”
The petition, which was filed with the court on Monday, asserts that the government didn't fulfil its duty by granting claims without consulting the nation. It is asking the courts to quash seven mineral claims on Banks Island, south of Prince Rupert, and for the court to suspend claim staking in Gitxaala territory.
“For too long, anyone with a computer and $34 has been able to acquire rights to minerals on the traditional territory of Gitxaala nation,” Gitxaala Chief Coun. Linda Innes said during a news conference Tuesday. “This can be done legally with no requirement for consultation or consent from Gitxaala and it is a complete disregard of our own laws and governance.”
She argued the process is a violation of the government's constitutional requirements to consult with the First Nation and the United Nations Declarations on the Rights of Indigenous Peoples, which the province has committed to implement. The UN declaration requires governments to obtain free, prior and informed consent before taking actions that affect Indigenous Peoples and territories.
“Gitxaala has never surrendered or ceded aboriginal title or other rights respecting Banks Island,” the court document says. “On the basis that the provincial Crown granted the claims without having fulfilled the duty to consult, the grant of each of the claims must be quashed or set aside.”
The petition includes allegations that have not been tested in court.
The provincial government has not filed a response to the petition with the court.
The Ministry of Energy, Mines and Petroleum Resources said it could not comment on matters before the court but that it will continue to work with First Nations on initiatives that “advance their interests with respect to reforming the mineral tenure system, including modernized land use planning and other initiatives intended to safeguard sensitive ecological and cultural values.”
Bruce Ralston, the minister of energy, mines and petroleum resources, told a separate news conference Tuesday that the department has been in touch with representatives from Gitxaala and is “aware of their concerns.”
“Generally what we have found in mining is that our relations with Indigenous communities are very good, and there are a number of mining companies which have impact benefit agreements with Indigenous First Nations to share some of the wealth that is created when the mining companies are making investments and create a new mine here in British Columbia,” Ralston said.
In an interview, Gitxaala lawyers Lisa Fong and Gavin Smith said benefit-sharing agreements have not applied to Gitxaala. They said the nation has not been contacted in relation to the lawsuit yet.
“Half of litigation is targeted to the root of the problem, which is the granting of the mineral tenders in the first place. It's pretty hard to build a good relationship when you're giving away rights to the minerals without even telling the nation,” Smith said.
The petition also names three individuals and one company as respondents, including prospector Johan Shearer, who said he hadn't heard about the petition. None of them have filed responses with the court.
Shearer said the claims system operates in real time and if a prospector had to contact the First Nation to inform them they are staking a claim, it would cause a problem for the industry.
“If you find something, you need to have some kind of control of that discovery and if you have to advertise that with the First Nation, the hard work you've done to make that discovery goes out the window,” he said.
“I understand their point of view but it's not how the industry works and if this were to happen, I'd imagine the mineral industry would dry up.”
The petition also claims the Mineral Grant Regime doesn't allow the First Nation to use or develop the land.
“We hope that by bringing this challenge forward, the government of British Columbia recognizes their own laws and practices are in opposition with their commitment and that they recognize the need to put an end to the granting of mineral rights without consultation or consent for all indigenous people,” Innes said.
This report by The Canadian Press was first published Oct. 26, 2021.
This story was produced with the financial assistance of the Facebook and Canadian Press News Fellowship.