Coastal nations take to ‘B.C.’s’ highest court to push province’s UNDRIP obligation

In the province’s highest court, two coastal First Nations argued that all “B.C.” laws must be interpreted consistently with the UN Declaration of the Rights of Indigenous People (UNDRIP). 

Members of the Gitxaała and Ehattesaht First Nations spent three days in the B.C. Court of Appeal last week, in their latest action involving the province’s Mineral Tenure Act.

A lower court ruling in 2023 affirmed the province’s duty to consult — and has led to reform of the rules which in the past have allowed mining companies to develop on Indigenous lands without obtaining consent. 

Gitxaała and Ehattesaht considered this a partial victory. They now want to see the higher court declare that the Mineral Tenure Act is inconsistent with UNDRIP as it was adopted into “B.C.” law.

Sm’ooygit Nees Hiwaas (Hereditary Chief Matthew Hill), who launched the legal challenge, spoke at a rally outside the downtown “Vancouver” court before the appeal began Jan. 20.

“The people have been living with the consequence of bad mining practices for years,” said Nees Hiwaas.

“Prospecting camps and mining operations polluting our lakes and salmon streams, impacting our resources, our medicines and our people for generations.”

“B.C.” has a legal duty under its Declaration on the Rights of Indigenous Peoples Act (DRIPA), which was adopted into law in 2019, to reform its regime in consultation and collaboration with Indigenous Peoples.

Gitxaała and Ehattesaht’s appeal makes the case that “British Columbia” has a common law duty to consult, which includes upholding the right to free, prior, and informed consent.

It also argues that aligning provincial laws with UNDRIP should not only be treated as a political promise — but a legal obligation enforceable in court.

“We are here today with all of our supporters to say that B.C. must be held to account for the commitments it made in the Declaration Act,” said Linda Innes, Gitxaała chief councillor.

The Gitxaała, also known as Git Lax M’oon, meaning — people of the saltwater — are one of the most ancient societies on the coast, according to the nation’s website, with territories stretching from the Nass River to Aristazabal Island, on the north coast of what is now called “British Columbia”. 

In May 2023, after a devastating illegal discharge of tailings on Lax K’naga Sts’ool (Banks Island) from Yellow Giant mine — a project that operated illegally on Gitxaała’s territory without their consent; as well as the discovery of numerous mineral claims, Gitxaała, alongside Ehattesaht First Nation, challenged the province in the B.C. Supreme Court.

Ehattesaht First Nation is a Nuu-chah-nulth community located on the West Coast of “Vancouver Island.”

By September, the two First Nations won a key partial victory. The ruling found that the province’s system for granting mineral rights without consultation was inconsistent with the Crown’s constitutional duties to Gitxaała. 

As a result of the ruling, the province introduced the Mineral Claims Consultation Framework (MCCF) — part of its broader reform of the Mineral Tenure Act. The goal of the framework, still in draft stage, is to address the 2023 B.C. Supreme Court ruling and ensure the province fulfills its duty to consult under Section 35. 

According to RAVEN Trust, an Indigenous legal charity that is supporting Gitxaała, the province also later agreed to end mineral claim staking on Lax K’naga Sts’ool, halt all mining activities related to existing claims for five years, and suspend new claims across the territory for three years. 

A spokesperson at RAVEN Trust said what will happen after these three and five year time periods, will depend on the outcome of the appeal, and the finalizing of the mineral claims framework. 

“Gitxaała Nation, alongside Ehattesaht First Nation, has already set an incredible precedent and managed to get B.C. to suspend any new mining claims in their territories – for now,” said a statement from RAVEN Trust.

“They could have stopped there, but the nations are pushing onward to ensure all First Nations will have access to the courts if B.C. does not uphold its DRIPA commitments, and to ensure that all B.C. laws are interpreted consistently with Indigenous rights affirmed in UNDRIP.”

Nees Hiwaas spoke of the importance of ensuring that all provincial laws are interpreted in alignment with the Indigenous rights affirmed under UNDRIP and DRIPA — as it would enable Gitxaała to uphold their own ayaawx and responsibilities to protect their lands and safeguard future generations.

“To uphold our ayaawx — our legal responsibilities to our people and territories — we must ensure that B.C. gets its own legal house in order,” said Nees Hiwaas. 

“We are sending a clear message to the province that we are in charge of our own destination.”

Nees Hiwaas alleged that Banks Island Gold, the company that owned Yellow Giant mine, deliberately ignored his nation’s concerns and attempts to implement their ayaawxs (Gitxaała laws). He also alleged the company breached the limited controls placed on them by their provincial permit, breaking 33 conditions and leaving the nation with an abandoned mine site, the pollution of which has devastated the salmon-rich creeks and near-shore areas of Lax K’naga Sts’ool.

The company went bankrupt and the mess was left to Gitxaała, said Nees Hiwaas.

“The damage to our spirituality has been severe,” he said.

Despite the partial court victory in 2023, Innes says Gitxaała continues to shoulder the burden of addressing the harm caused by poor practices in mining and the outdated gold rush-era “free entry” system — a legal framework that allows prospectors and mining companies to access so-called “Crown” land and stake claims for mineral exploration without consulting Indigenous governments or landowners.

Robert Phillips of the First Nations Leadership Council and the First Nations Summit attended the rally last week. He said that reforming the Mineral Tenure Act has to be done in co-development with First Nations “not just organizations, but the hereditary, the elected, and the people, in order to make this alignment with UNDRIP,” he said. 

“And if we have to hold up signs,” added Phillips, “and if we have to go to court, and if we have to do all the things in order to make it right, we will do that.”

Overlapping the appeal hearing was the two-day “B.C.” cabinet and First Nations Leaders’ Gathering on Jan. 21 and 22 — co-hosted by the provincial government and the First Nations Leadership Council.

“Reconciliation and strong government-to-government relationships with First Nations continue to be an important priority for government, across all ministries,” said Christine Boyle, minister of Indigenous Relations and Reconciliation, in a statement.

“In British Columbia, partnerships with First Nations are the path to a strong economy, meeting our climate goals and building a good life for all of us across the province. I’m looking forward to continuing to make real progress on reconciliation through partnerships that will benefit everyone in B.C.”

According to Innes, Gitxaała isn’t wholly against mining activities. 

“We know that responsible mining done in places that make sense, with the kind of protections and controls that companies frequently say they can put in place is possible,” she said.

“But we also know that this is unlikely to happen without the direct oversight and commitments that can only occur by the people who rely on the water and land of these territories for their culture, their livelihood, and their family.

“It’s because of this, she says, that consent needs to be the minimum standard for future grants of mineral rights of mining, “specifically free, prior and informed consent.”