On October 25, 2021, Gitxaala Nation filed a Petition in the Supreme Court of BC to seek judicial review of the Crown’s grants of seven mineral claims between 2018 and 2020 on Banks Island, in Gitxaala’s traditional territory. The review issue involves the Crown having failed to first consult with Gitxaala about the adverse impacts of such grants, contrary to the Crown’s constitutional duty to consult and accommodate Gitxaala. Ehattesahet First Nation later filed a companion Petition, and the court has since decided to have the two Petitions heard together.
On January 6, 2023, the Court decided to allow various persons to act as “interveners” who may provide their special perspectives about issues to the court, including BC Assembly of First Nations, Union of British Columbia Indian Chiefs, First Nations Summit, various First Nations, the Human Rights Commissioner for British Columbia, several mineral exploration companies supporting the Petitioners; a coalition of private groups; and a coalition of mining industry groups.
The hearing of the two Petitions is set to commence on April 3, 2023. The parties are in the process of drafting and exchanging written submissions. We are pleased to provide the brief introduction from the beginning of Gitxaala Nation’s extensive written submissions.
This proceeding will be one of the first cases where the court must grapple with the United Nations Declaration on the Rights of Indigenous Peoples (the “UNDRIP”), how the UNDRIP has “application” to the laws of British Columbia, and whether the court may decide that a law of British Columbia is “consistent” (or inconsistent) with UNDRIP rights.
Here is an extract from Gitxaala’s written submissions.
1. Gitxaała Nation seeks judicial review of grants of mineral claims by the Crown over parts of Lax k’naga dzol (Banks Island). The challenge is based on the failure of the Crown (in right of British Columbia) to fulfil a constitutional duty to consult about such grants before issuing them. The impugned grants transfer ownership of minerals that have belonged to Gitxaała, and authorize exploration and extraction activities on lands governed by Gitxaała, since long before 1846, when the Crown asserted sovereignty over Gitxaała’s “unoccupied” lands. A duty to consult arises from the impact of such grants on Gitxaała’s inherent rights as Indigenous peoples. Gitxaała challenges the decisions of statutory actors to grant claims through an “automatic” registry system, without consultation, as defective. Such grants specifically impact Gitxaała’s rights to own and govern their lands and waters. By virtue of the Crown denying a duty to consult, the Crown denies the legitimacy of Gitxaała’s inherent right to own and govern their traditional territories in accordance with their laws.
2. Gitxaała are an Indigenous people. They have occupied Laxyuubm Gitxaała (Gitxaała Territory) since time immemorial. Since long before contact with Europeans, and long before 1846, Gitxaała owned and governed Gitxaała Territory. Gitxaała exercised Indigenous sovereignty and governed territories according to ayaawx (Gitxaała law). The territory that Smgyigyetm Gitxaała (Gitxaała hereditary chiefs) collectively governed and owned, with each sm’ooygit (hereditary chief) holding on behalf of their waap (house), included Banks Island. No real dispute can exist that Gitxaała did and still own and govern Gitxaała Territory pursuant to their own law. Under Canadian law, Gitxaałan authority “translates” into Aboriginal title (expressing “property” rights) and Aboriginal governance rights (expressing “state” law-making jurisdiction).
3. Historically, under the now-condemned doctrines of discovery and terra nullius, the Crown asserted sovereignty, and purportedly acquired ownership of Gitxaała Territory that it “discovered” on the basis it was not governed or possessed by Christian peoples, and therefore “unoccupied” lands and waters. Nonetheless, pursuant to s.35 of the Constitution Act, 1982, the Crown now recognizes and affirms the “existing aboriginal and treaty rights of the aboriginal peoples of Canada”. Further, in 2014 the SCC ruled that the doctrine of terra nullius never applied in Canada. Further still, in 2021, Parliament affirmed that the doctrine of discovery is “racist, scientifically false, legally invalid, morally condemnable and socially unjust”. In result, the honour of the Crown requires that the Crown reconcile the Crown’s assertion of sovereignty with the pre-existing sovereignty, rights, and occupation of Aboriginal peoples. Although the common law (for now) is that the burden of proof lies on Indigenous peoples to prove title and rights (instead of requiring Crown proof of a treaty), the law recognizes a constitutional duty of the Crown to consult. The honour of the Crown prevents the Crown from running “roughshod” over unresolved titles and rights by requiring that the Crown consult before engaging in conduct that may adversely impact such titles and rights.
4. The Mineral Tenure Act, RSBC 1996, c. 292 (the “MTA”) is a colonial holdover that continues a staking system that first arose in BC in 1859. It allows “free miners” to stake mineral claims over “Crown” minerals in BC, including Banks Island. This staking results in the Crown granting rights to “recorded holders” of claims, which rights include ownership and exploration rights. Recorded holders are exclusive owners of minerals; they may renew their claims; they may convert their “claims” into long-term leases as of right; and they may take minerals to which Gitxaała has unresolved title without compensation. For these and other reasons, such grants adversely impact titles and rights, and engage a duty to consult. Although the MTA does not expressly address consultation, it provides powers to Crown actors to permit consultation before a grant. Yet the Crown here granted the impugned claims without consultation. Gitxaała submits the Crown owed (and breached) a constitutional duty to consult. The Crown cannot avoid that duty by using a system of “automatic” grant decisions. The Yukon Court of Appeal found such a system inconsistent with a duty to consult in Ross River Dena (2012 YKCA 14).
5. This petition occurs in the context of two important statutory changes: the enactment of section 8.1 of the Interpretation Act, RSBC 1996, c. 238, and the enactment of the Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c. 44 (the “DRIPA” or the “Declaration Act”). Both enactments operate to apply the rights of Indigenous peoples as set out in the United Nations Declaration on the Rights of Indigenous Peoples(the “UNDRIP”). The former enactment (through s. 8.1(3)) applies UNDRIP rights to BC enactments by requiring that every Act and regulation (including the MTA and including the DRIPA) “be construed as consistent with the Declaration [i.e., the UNDRIP]”. The latter enactment (the DRIPA) applies UNDRIP rights to “the laws of British Columbia” (DRIPA s. 2(a) and s. 1(4)). That phrase encompasses both enactments and the common law. Accordingly, the DRIPA applies the UNDRIP to, among other things, the common law of the “honour of the Crown” and what honour requires for dealings with Indigenous peoples. UNDRIP recognizes inherent rights of Indigenous peoples. Such rights include rights of self-determination and self-government over local affairs (governance rights); rights of ownership over traditional territories (ownership rights); and rights of Indigenous peoples to be consulted before a state approves of any project affecting their lands or territories, particularly relating to mineral resources (consultation rights). Consultation means the state seeking free, prior, and informed consent. These UNDRIP rights are human rights that do not depend on the state first recognizing title. Any limitation on UNDRIP rights must meet specific and strict exemption criteria set out in the UNDRIP.
6. In these circumstances, the Crown owed Gitxaała a constitution duty to consult before granting mineral claims on Banks Island, especially where the honour of the Crown is informed by UNDRIP rights to which the Crown has committed itself. If the Crown owed a duty to consult, no issue exists that it contravened the duty by granting the impugned claims. Gitxaała therefore declaratory relief relating to the duty to consult. Gitxaałan also seeks to have impugned claims quashed for lack of consultation, and permanent injunctive relief to prevent further grants of claims in Gitxaała Territory without consultation. Notably, Gitxaała does not seek to stop grants of claims to which Gitxaała has given its free, prior, and informed consent, or where a duty to consult is satisfied. Finally, Gitxaała asks that the court determine an inconsistency under DRIPA s. 3, between the MTA (and its regulations) and various UNDRIP rights, which is a basis for a legal duty of the Crown to take measures which are to be determined “in consultation and cooperation with the Indigenous people in British Columbia” (and therefore in consultation and cooperation with Gitxaała).
7. Although this petition and the relief sought relates only to Gitxaała Territory, it raises issues of great importance to all Indigenous peoples in British Columbia. Since 1859, BC’s mining regime has adversely impacted Indigenous peoples, including Gitxaała, by transferring away ownership of minerals, and by authorizing activities without regard to Gitxaała’s jurisdiction over any part of Gitxaała Territory, all without consultation. These issues affect all First Nations in BC. The First Nations Summit, made up of a majority of First Nations and Tribal Councils of BC, has resolved to support Gitxaała’s petition, as has the Union of BC Indian Chiefs, a representative organization of BC First Nations (Kreutz #2, Ex. N and O). This dispute about the MTA regime illustrates how BC laws have contributed and still contribute to a history of “colonial confiscation and Aboriginal displacement” (Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15 (“Saik’uz 2022”) at para. 171). The operation of the MTA regime to give away minerals and authorize exploratory mining ignores and challenges Gitxaała’s authority to own and to govern territory – the heart of Gitxaała’s jurisdiction. As stated by Sm’ooygit Nees Hiwaas in this case, “Territory is a critical foundation of the power of every sm’ooygit and the wealth of Gitxaała as a people. Crown conduct that denies Gitxaałan ownership and governance of Gitxaała Traditional Territories is inconsistent with and amounts to an attack on the integrity and legitimacy of our ayaawx [law] and inherent title.” (Hiwaas #1, para. 42)
Ng Ariss Fong, Lawyers and West Coast Environmental Law are honoured to represent Gitxaala Nation in this proceeding.
Lisa C. Fong, KC and Michael Ng