First Nations' court challenge to B.C.'s mineral rights system begins

A challenge by two First Nations against the way British Columbia grants mineral claims begins in B.C. Supreme Court on Monday morning, marking the first legal test of the province's Declaration on the Rights of Indigenous Peoples Act. 

The Gitxaała and Ehattesaht First Nations have sued the province over its Mineral Tenures Act, which currently grants mineral claims for a nominal fee via an online system and does not include initial consultation with Indigenous people.

The two nations say this process goes against the United Nations Declaration on the Rights of Indigenous Peoples, which the province adopted in 2019. The declaration requires governments to obtain free, prior and informed consent before taking actions that affect Indigenous peoples and territories.

In the current system, by the time the nation finds out mineral rights have been granted, the process has often moved on to permitting and exploring, Gitxaała Nation Chief Coun. Linda Innes says.

"The dominoes have already started dropping there, and there's no way for our Gitxaała Nation to intervene at that point," Innes said. 

The case is scheduled to run for eight days. Gitxaała leaders are expected to hold a news conference prior to the start of the court hearings on Burrard Street in Vancouver at 8:30 a.m. PT, which will be followed by a procession to the courthouse.

'Groundbreaking legal challenge'

In a written statement, the Gitxaała said the case is "a groundbreaking legal challenge against B.C.'s outdated practice of granting mineral claims."

In January, the B.C. Human Rights Commission was granted intervenor status in the case.

"The interpretation of the Declaration Act plays an important role in ongoing decolonization and reconciliation efforts in our province," said B.C. Human Rights Commissioner Kasari Govender at the time. 

The Gitxaała say several mineral mining rights have been granted on their territory in the past few years. They hope to overturn those claims and change the way claims are granted. 

The nation filed a petition in October 2021 seeking a judicial review, arguing the process doesn't require the government to consult with the First Nation and simply grants the claim.

Innes has previously argued the claims process violates the government's constitutional obligation to consult with Indigenous nations.

The petition asks the courts to quash seven mineral claims on Banks Island, south of Prince Rupert, B.C., and for the court to suspend claim-staking in Gitxaała territory.

The B.C. Ministry of Energy, Mines and Low Carbon Innovation says it can't comment on matters before the court. 

The ministry did say "the province is committed to working in consultation and co-operation with all Indigenous Peoples and in alignment with the Declaration Act and the UN Declaration on the Rights of Indigenous Peoples."

It also said the province committed to modernizing the Mineral Title Act in March 2022, as part of the Declaration Act Action Plan, and that work is being done "in consultation and co-operation with Indigenous peoples."