By: Lucaiah Smith-Miodownik, News Writer

In the spring of 2023, the Gitxaała and Ehattesaht Nations took to BC’s Supreme Court to challenge the policy surrounding mining minerals like gold, silver, and copper. The Nations argued the “free-entry” system in practice is “outdated and unconstitutional” as it violates the government’s duty to consult Indigenous Peoples. This system — which is currently on pause due to the court’s ruling — allows individuals or companies to “stake claims on those minerals.” 

For the Gitxaała and Ehattesaht Nations, the policy is a “colonial holdover.” During BC’s gold rush era, from 1858 to the mid-1860s, settlers would claim land by driving a wooden stake into the ground. In the digital age, proof of age and the payment of a small fee are required for a claim.

The free-entry system does not require consultation with First Nations when it comes to mining on their unceded territory. In spring 2023, the court found that the Mineral Tenure Act, which previously abided by this free-entry system, had to be altered. Indigenous Watchdog reported BC agreed to freeze any current mining claims and pause the ability to generate new ones for five and three years, respectively, from March 7, 2024. This was “a partial victory” for Gitxaała and Ehattesaht.

The First Nations recently found themselves back in court on January 20 fighting for the Mineral Tenure Act to be labelled as “inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).” According to Indigenous Watchdog, UNDRIP was adopted into ‘BC’ law” with consultation in 2019. The Government of Canada website states UNDRIP is designed to outline “collective and individual rights that constitute the minimum standards to protect the rights of Indigenous Peoples and to contribute to their survival, dignity, and well-being.”

These court cases “cost hundreds of thousands, if not millions of dollars, and many Nations don’t have the resources to be able to pay out of pocket for that,” Leslie Anne St. Amour, campaigns director at RAVEN Trust, told The Peak. RAVEN “raises legal defence funds for Indigenous Nations who are in court to protect land, air, and water for future generations.”

“We owe it to our children, to those yet to be born within the Gitxaała Nation. We do it with one voice and in the spirit of being of one heart.” — Linda Innes, Chief Councillor, Gitxaała Nation

The Declaration on the Rights of Indigenous Peoples Act (DRIPA) is a provincial act that sets UNDRIP “as the province’s framework for reconciliation.” The point of intersection between the DRIPA and UNDRIP has become the subject of debate. Specifically, whether DRIPA should be considered a political promise or legal obligation.

While the court did affirm the “duty to consult” First Nations before making mining claims, it also found that DRIPA “didn’t work the way Gitxaała was arguing it should,” St. Amour explained. The Gitxaała Nation “argued that regardless of whether or not the Mineral Tenure Act violated the duty to consult, it also violated DRIPA,” St. Amour said. The court ruled otherwise, asserting that DRIPA can’t be used “to create a legal action” because “it’s not enforceable,”  according to St. Amour.

She further explained that DRIPA required BC to lay out a plan to align the Act with UNDRIP, but since the two were not yet aligned, there was no “actionable issue.” She said the government is “often really careful to not say ‘this implements UNDRIP into Canadian law,’ but they would say things like ‘we’re bringing UNDRIP to BC, we’re incorporating it.’” In other words, Canada considers UNDRIP in their policies, but it is not Canadian law. To this end, St. Amour also acknowledged the complexities of applying international law in a provincial context, which might cause the government to be careful. 

Ultimately, the push to align DRIPA is about making sure that “all First Nations will have access to the courts if BC does not uphold its DRIPA commitments, and to ensure that all BC laws are interpreted consistently within Indigenous rights affirmed in UNDRIP,” according to Indigenous Watchdog. And, as Chief Councillor of the Gitxaała Nation Linda Innes said, “We owe it to our children, to those yet to be born within the Gitxaała Nation. We do it with one voice and in the spirit of being of one heart.”

For now, BC is still working on amending the Mineral Tenure Act. As for the most recent hearing, Gitxaała and Ehattesaht are waiting for the court to release a decision. Depending on the outcome, St. Amour said a possible next step may be to appeal to the Supreme Court.

Those interested in learning more or donating to RAVEN trust can do so at their website, raventrust.com.