Gitxaała is located within the Great Bear Rainforest and the Great Bear Sea on B.C.’s North Coast. The main community is the village of Lach Klan (Kitkatla) on Dolphin Island. There are twenty-one contemporary Gitxaała reserves. Ancient village sites, spiritual sites and places associated with historic and legendary events abound through Gitxaała’s territory. Gitxaała’s distinct culture, language, and laws are inseparable from their traditional territory and other life forms within it.

Gitxaała’s Territory includes Banks Island, located in Hecate Strait, east of Haida Gwaii. The northern tip of Banks Island is located south of Prince Rupert, and just south of the village of Lach Klan on Dolphin Island. Banks Island is known amongst the Gitxaała as their “bread-basket” or “table”, and its ecosystem is integral to the Gitxaała way of life. Banks Island also includes and is adjacent to areas of special spiritual significance to the Gitxaała.

In 2014, the B.C. Ministry of Energy and Mines approved the Giant Yellow gold mine on Banks Island despite Gitxaała opposition. Within months of beginning operations, the mining company, Banks Island Gold, illegally released tailings and effluent into a salmon-bearing creek, a lake, a pond, as well as forest and wetland on Banks Island. The company failed to report this contamination despite legal obligations to do so.

The B.C. Ministry of Energy and Mines issued a shutdown order for Yellow Giant in 2015. Soon after, Banks Island Gold filed for bankruptcy, leaving behind a trail of pollution for the Gitxaała and/or taxpayers to clean up. It turned out that the tailings discharge was only one in a series of permit violations that B.C. had not acted to prevent, despite warnings from the Gitxaała. Two senior executives of the now-defunct Banks Island Gold face ongoing prosecutions in relation to the Yellow Giant violations.

For Gitxaała Nation, B.C.’s failure to promptly inspect the mine site, enforce permit conditions and clean up the mess poses a clear warning about the risks of any further mining projects in a salmon-rich area of great cultural importance to the Gitxaała. 

Gitxaała Nation has brought a legal challenge against B.C., Global Mineral Resources Corporation (GMR), and named individual “free miners” to overturn mining claims registered on Banks Island through the B.C. online mineral registry without consultation or even notice to Gitxaała. Gitxaała Nation is also seeking declaratory relief: a declaration that B.C. has a duty to consult with Gitxaała before granting mineral claims in Gitxaała territory, and a declaration that the mineral grants regime is not consistent with UNDRIP, among others. Gitxaała Nation is also seeking an injunction suspending operation of the Mineral Registry concerning the granting of mineral titles within their lands.

After a hearing in April 2023, the court issued a decision in September 2023 which recognized that the online mineral registry did violate Gitxaala’s rights, but did not quash claims issued, nor found that UNDRIP was applicable. In October 2023, the Gitxaala Nation decided to appeal the failure to quash, and the decision on DRIPA.

If Gitxaała Nation wins on appeal, the challenged mineral claims on Gitxaała territory will be quashed. The case may also trigger a review of the Mineral Tenure Act to bring B.C.’s mineral tenure regime into compliance with UNDRIP, as required by DRIPA and further clarity on the application of DRIPA to other resource extraction.

Gitxaała Nation is relying on three main heads of argument: one, that B.C. has failed to fulfill its duty to consult; two, that B.C.’s mineral grant regime is inconsistent with the honour of the Crown and therefore must be reformed according to constitutional law; and three, that the province’s mineral grant regime is inconsistent with UNDRIP and therefore must be reformed according to the Declaration on the Rights of Indigenous Peoples Act (DRIPA).

Under the duty to consult argument, Gitxaała Nation argues that either the gold commissioner, who is in charge of granting mineral claims, or the B.C. government, or both, have failed to use their power to require that the constitutional imperative of consultation and accommodation be carried out prior to the granting of the challenged mineral claims. Given the failure to consult, Gitxaała argues that the mineral claims must be overturned.

Gitxaała also argues that B.C.’s entire regime for granting mineral tenures is inconsistent with the constitutional principle of the honour of the Crown. The honour of the Crown is a foundational principle that recognizes that Indigenous people were here first, and that they were never conquered. The tension between the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and occupation of Indigenous peoples creates a “special relationship” that requires the Crown to act honourably in its dealings. The honour of the Crown is always at stake in its dealings with Indigenous peoples and is binding on the Crown. Gitxaała argues that B.C.’s choice to set up an automatic online regime for granting mineral tenures, which inherently prevents any constitutionally-required consultation or accommodation from occurring, is incompatible with the honour of the Crown and cannot be allowed to stand.

Gitxaała Nation also argues that the mineral grant regime is inconsistent with UNDRIP because it results in Indigenous peoples being automatically dispossessed of important aspects of their title and rights to land without free, prior and informed consent, in fact without any consultation or notice whatsoever. Gitxaała argues that DRIPA legally requires B.C. to take measures to reform the mineral grant regime so that it is consistent with UNDRIP.

Gitxaała is asking the Court to intervene and assist in correcting the BC government’s failings in this regard, with a view to securing systemic changes to BC’s Mineral Tenure Act to bring it into alignment with the UNDRIP.

At the first instance, Gitxaala was successful when the court decided the automatic mineral claim registry did violate Gitxaala’s rights but the court decided UNDRIP did not apply and did not quash the permits approved. Therefore the Gitxaala Nation is appealing this part of the court decision.

The granting of mineral rights to third parties intrudes on Gitxaała’s enjoyment of Aboriginal title (including Aboriginal ownership of minerals), and on Gitxaała’s Aboriginal right to manage Gitxaała territory and decide on land use. In effect, under the current mineral tenure regime, B.C. unilaterally decides what areas of Gitxaała territory are open to mineral exploration and unilaterally gives away rights to minerals on Gitxaała land to other parties. This deeply disrespectful practice negatively impacts Gitxaała’s right to govern its own territories according to the ayaawx, or Gitxaała laws. 

On the land, mineral exploration activities interfere with Aboriginal rights to hunt, fish, trap and gather. Surveying, trenching and digging pits can disturb wildlife and interfere with the experiences of Gitxaała members visiting cultural or spiritual sites. Soil or rock sampling can impact water quality.

The grant of a mineral claim also sets the stage for future provincial approvals. By the time Gitxaała learns about a proposed mine, the company has already secured rights to the minerals themselves, which creates momentum for obtaining further provincial approvals. This undermines Gitxaała governance and creates an uneven playing field for consultation, because B.C. has already given away important rights before it even engages with Gitxaała. 

The defendants have already carried out mineral exploration work on Gitxaała territory, with no consultation with Gitxaała Nation.

If the Gitxaała win their appeal, the challenged mineral claims on Gitxaała territory will be quashed. The case may also trigger a review of the Mineral Tenure Act to bring B.C.’s mineral tenure regime into compliance with UNDRIP, as required by DRIPA.

All the funds raised for Gitxaała campaign go to Indigenous litigation. 85% of the funds raised go to Gitxaała to fund their legal challenge. RAVEN used to levy 15% as administrative costs to sustain our operations. However, as of 2021, the 15% levy is placed into our Discretionary Litigation Fund (see below). 

If a legal challenge is terminated, and the money raised exceeds the litigation expenses, we place the remaining funds into the Discretionary Litigation Fund. We use the money in the Discretionary Litigation Fund to add funds to any of our litigation campaigns that need extra funds for any reason (e.g. to respond to a Crown motion, or to commission additional expert reports).