Gitxaala launches court challenge over system that allows easy purchase of mineral rights in B.C.

Oct 26, 2021

The Gitxaala charge that mineral claims in their traditional territory were granted without consultation or even notice, which violates constitutional obligations to them and violates the United Nations declaration of the rights of indigenous peoples, which the B.C. government adopted in 2019.

The Gitxaala First Nation in northwestern B.C. has filed a first-of-its-kind legal challenge to the province’s mineral rights regime, which some critics have likened to a relic from the gold-rush era.

The Gitxaala charge that mineral claims in their traditional territory were granted without consultation or even notice, which violates constitutional obligations to them and violates the United Nations Declaration of the Rights of Indigenous Peoples, which the B.C. government adopted in 2019.

 

 

 

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“The fact that B.C. still grants mineral claims with total disregard for Indigenous nations like Gitxaała is a damaging relic of colonialism that has no place in the present day,” hereditary chief Matthew Hill said Tuesday. “We will not allow this to continue in Gitxaała territory and that is why we’ve launched our case.”

B.C. Ministry of Energy, Mines and Low Carbon Innovations officials said they could not comment on the court case, but noted some discussion with First Nations on potential mineral tenure reform had taken place in 2018 and 2019.

The conversations identified a need for “additional engagement,” ministry spokeswoman Meghan McRae said in a written statement.

Under the B.C.’s mineral tenure system, a person or company that has paid a small fee ($25 for an individual or $500 for a company) to register as a “free miner” can apply for mineral rights on parcels of almost all land in British Columbia.

Since 2005, free miners can do so online by selecting plots with the click of a mouse for $1.75 per hectare, which are granted automatically.

The mineral claim holder has the right to explore for minerals and develop the claim into a lease to extract minerals.

The system has been criticized by First Nations and environmentalists as a relic of a gold-rush era and one that has no consideration for Indigenous, community or private land interests and existing land-use plans.

Provinces such as Ontario and Quebec have modernized their mineral tenure systems to take into consideration other land rights and uses.

Calvin Sandborn, legal director of the University of Victoria’s environmental law centre, said B.C.’s mineral tenure regime is based on an outdated presumption that this land was discovered by Europeans, nobody was here before, and mineral prospectors have the right to claim whatever they want in order to develop a frontier society.

“Granting sweeping mineral claim powers, especially in the Internet age where you can collect and file these things by the bushel load, is likely a breach of Indigenous rights,” said Sandborn, who along with others has been calling for reform of B.C.’s mineral tenure system.

In its petition filed in B.C. Supreme Court, the Gitxaala want to overturn several mineral rights claims granted in its traditional territory by the province between 2018 and 2020 and suspension of granting any new mineral claims.

The mineral rights were granted between 2018 and 2020 on 1,440 hectares on Banks Island, south of the Gitxaala community of Kitkatla and about 100 kilometres south of Prince Rupert.

The tenure area is about 3-1/2 times the size of Stanley Park and the mineral rights would have cost about $2,500. Costs to maintain the mineral rights increase annually to a high of $40 per hectare in the fourth year.

The court petition notes the province did not consult the Gitxaala over the granting of the mineral tenure claims. Banks Island is 1,000 square kilometres, 20 times the size of Bowen Island.

“Banks Island is known amongst Gitxaala as their ‘bread-basket’ or ‘table,’ and its ecosystem is integral to the Gitxaala way of life,” says the court petition.

At a news conference Tuesday, Gitxaala elected chief councillor Linda Innes pointed to the recent negative effect of mining on Banks Island, including, potentially, on salmon-bearing streams.

The Yellow Giant gold mine on Banks Island was approved by B.C. in 2014 and a year later came under provincial and federal scrutiny for spills of mine waste into the environment. The province ordered the mine to shut down and its owners went bankrupt, with the company’s senior executives still facing prosecution.

In reacting to the Gitxaala’s legal action, Kendra Johnston, the president of the Association for Mineral Exploration in B.C., noted the acquisition of a mineral rights claim is only one step in an extensive process.

For example, mineral exploration companies must complete a detailed “notice of work application” that includes government-to-government consultations with Indigenous groups that may benefit or be impacted by the exploration work, said Johnston.

ghoekstra@postmedia.com

[Top photo: Banks Island Gold Mine. PHOTO BY HANDOUT /Vancouver Sun]