It’s time to force B.C. to live up to the claim that it is a world leader in social and environmental responsibility in its mining sector.

With support from the Environmental Law Centre at University of Victoria, a coalition of First Nations has called for a judicial inquiry into mining practices, calling out  the sector’s “profound state of dysfunction”. 

Since then, the BC government has adopted DRIPA, the Declaration on the Rights of Indigenous Peoples Act, a binding requirement for the province to align its laws with the United Nations Declaration. There’s no doubt that the relationships between Indigenous Peoples and British Columbia’s mining sector are set to change. But fully implementing DRIPA could take years. Meanwhile, unsustainable, unjust and unsafe mining continues apace, enabled by long-standing legislation and policy that gives mining priority over almost all other land uses in the province. 

While B.C. touts its mining policies as sustainable and just, on the land and water a different story is starkly evidenced. 

Here are 7 ways B.C.’s Mineral Tenure Act  is mean, and not green:

1. It sidelines Indigenous Peoples. First Nations are often the last to know about a mineral application on their land. B.C.’s Mineral Tenure Act is a Gold-Rush era piece of legislation that is shockingly out of step with the realities of  Indigenous rights and title. The Act allows any individual or company to purchase a tenure without consultation or consent. Mining claims undermine community-based land use planning, environmental protection, and private property; right now, at the click of a mouse and for $1.75 a hectare, anyone can literally obtain a permit without any Indigenous consultation whatsoever.
   
2. Mines are operating without consent. B.C’s 2018 Environmental Assessment Act requires that officials seek to achieve “consensus” with affected Nations rather than work toward consent. Under the EAA, the government must ‘consider’ a Nation’s lack of consent and must publish its reasoning for approving a project despite failing to obtain Indigenous consent. This bar is far too low, and nowhere near consent as defined by the Declaration on the RIghts of Indigenous Peoples, which DRIPA incorporated into law. B.C.’s environmental assessment laws should require Indigenous consent and meaningful public participation as a condition for approving mining projects.
   
3. The industry grades its own papers. The Mining Association of Canada’s “Toward Sustainable Mining” sets out voluntary standards for the mining sector.  The problem? TSM is owned and managed by the industry. An unenforceable, industry-controlled standard is woefully insufficient when it comes to protecting the rights of Indigenous communities and the environment.
   
4. Mining in B.C. has dangerously sloppy oversight. Mining tailings and dams litter the watersheds of B.C., holding back millions of litres of toxic waste.  The industry notoriously fails to carry out routine environmental monitoring. As a result, toxins are allowed to leach  into nearby streams and rivers. 
   
5. Industry won’t clean up its mess. Abandoned mines continue to leak toxic runoff into waterways and the cost of clean-up, if it happens, is likely to be shouldered by B.C. taxpayers.  In 2018, B.C. had 1.2 billion on the books in unfunded liability for mine site clean-up.
    
6. BC thinks ‘dilution’ is a solution. The B.C. Government permits mines to discharge mine wastewater directly into lakes and rivers with barely any treatment, counting on a dilution factor to lower pollution levels. In Tsilhqot’in territory, a permit allows mining companies to discharge 24 million litres of polluted water every day into the Fraser River, where salmon and sturgeon are in dramatic decline.
   
7. B.C. has some of the highest and riskiest tailings dams in the world.
   The 2014 breach of a copper- and gold-mine tailings pond at the Mount Polley site in the Cariboo region of B.C. released millions of cubic metres of water and slurry into a nearby lake; it was the worst mining disaster in Canada’s history. Despite failing to fully implement recommendations from the Mt. Polley inquiry, a tailings dam for Copper Mountain mine has been approved that will potentially be taller than Vancouver’s tallest skyscraper. Meanwhile,(for graphic only: Mining tailings and dams litter the watersheds of B.C., holding back millions of litres of toxic waste.)   in a 2021 audit, one in four tailings facilities failed to meet BC’s safety requirements. 

Indigenous people are not standing for it. From Tahltan Nation evicting Doubleview Gold from their territory to the ʔElhdaqox Dechen Ts’edilhtan “Sturgeon River Law” and Yinka Dene Surface Water Law, Nations are taking matters into their own hands in the absence of a rights-based regulatory framework. 

Right now, Gitxaala Nation has launched a toothsome legal challenge in an endeavour to protect Banks Island from mining exploitation. A critical salmon habitat, this estuary island is recovering from a  devastating 2015 mining disaster, when an illegal discharge of tailings from the Yellow Giant gold mine – a project that Gitxaała said from the beginning they did not want – devastated Banks Island’s salmon-rich creeks and near-shore areas. The company quickly went bankrupt and the mess was left to Gitxaała. As a result, the Gitxaała have called for an end to mining activities on Banks Island. 

Yet the B.C. government continues to allow companies and individuals to stake mining claims on Banks Island through its Mineral Titles Online Registry with only a click of a mouse and a small fee. This gives mining companies an immediate right to access the land for mineral exploration – including certain types of drilling and digging pits and trenches – without any consultation with Gitxaała Nation.

Gitxaała Nation is asking the court to uphold Free, Prior and Informed consent, and quash the mineral claims on Banks Island. It’s only through legal actions such as this that DRIPA will be fully implemented.  

If you think you’ve heard of Gitxaała Nation taking legal action before, that’s because the Nation won one of the most significant Federal Court decisions of the decade. The case that killed Enbridge, which was supported by RAVEN’s Pull Together campaign, was brought by seven First Nations – of which Gitxaała was one – and was based on a failure to consult Indigenous Peoples in accordance with Section 35 of the Constitution. The case famously quashed the permits for the proposed Northern Gateway pipeline and tankers project, setting the stage for a north-coast tanker ban and protecting B.C., the Great Bear Rainforest and future generations from oil spills and climate disaster. 

The duty to consult leaves room for interpretation, though: witness the Trans Mountain pipeline debacle, in which Indigenous Nations opposed to the project pursued legal action but failed to persuade the courts that consultation had been inadequate. This new strategy — using the courts to force the province to comply with DRIPA — has potential, given the province is bound via a statutory requirement to align its laws with the different articles in the UN Declaration.

It can’t happen fast enough for Gitxaała. 

Gitxaała’s case has an immediate goal: to protect Banks Island. In taking to the courts, the Nation also stands to spur on the reform of  the Mineral Tenures Act, a result that, like the Enbridge win, would create a long-term ripple effect for the good of all.