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Gitxaała Nation: Uniting for UNDRIP

Thanks to Gitxaała’s win at the B.C. Supreme Court (2023),  B.C. will no longer allow corporations to stake mining claims in Indigenous territory without consultation with Indigenous Peoples. Gitxaała Nation is now pushing the court to uphold Free, Prior, and Informed consent, and quash the mineral claims on Banks Island. Are you in?

Campaign Overview

Justice for Gitxaała is Free, Prior, and Informed Consent

Gitxaała Nation is taking B.C. and several “free miners”, including Global Mineral Resources Corporation, to court over mineral claims in their territory that were registered without notification, consultation or consent.

Thanks to Gitxaała’s win at the B.C. Supreme Court (2023), B.C. will no longer allow corporations to stake mining claims in Indigenous territory without consultation with Indigenous Peoples. Gitxaała Nation is now pushing the court to uphold Free, Prior and Informed consent, and quash the mineral claims on Banks Island.

The fact that BC still grants mineral claims with total disregard for Indigenous Nations like Gitxaała is a damaging relic of colonialism that has no place in the present day. We will not allow this to continue in Gitxaała territory and that is why we’ve launched our case.

Hereditary Chief Matthew Hill
CAMPAIGN MISSION

Pushing the Court to uphold Free, Prior, and Informed consent.

Your Turn To Make A Move

Join the choir of voices calling for Free, Prior, and Informed Consent: support Gitxaala’s appeal and help keep the mining industry out of the salmon-rich waters of Banks Island.

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A Timeline

March 2025 – Mineral Claims Consultation Framework Goes Live

In response to the B.C. Supreme Court’s decision, the Province released the Mineral Claims Consultation Framework to ensure that the duty to consult is met before any claim registration. Read more here. 

January 2025 – BC Court of Appeal Hearing

From January 20-22nd, Gitxaała Nation is at the BC Court of Appeal to ensure that B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) has legal teeth and that all B.C. laws must be interpreted consistently with UNDRIP.

March 2024 – New Mining Orders

The B.C. government declared that no new mining claims can be staked on parts of Gitxaała territory, and none through all of Ehattesaht’s territory. This decision was accompanied by the provincial government putting a halt to mining activities or mineral exploration from previous claims staked on Banks Island, a critical part of Gitxaała’s territory.

October 2023 – Gitxaała Nation Appeals

Gitxaała Nation is appealing a ruling for their case over B.C.’s archaic Mineral Tenures Act. Although Gitxaała celebrate this victory for mining justice, the B.C. Supreme Court also found that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has no force under law in B.C.. Gitxaała is appealing this judgement to ensure that B.C. abides by its own Declaration on the Rights of Indigenous Peoples Act, which requires the free, prior, and informed consent of Indigenous Peoples ahead of permitting mining on their territories.

September 2023 – BC Supreme Court Ruling

September 26th: ruling establishes duty to consult is triggered before a mineral claim is staked. Province of B.C. given 18 months to create a process to consult Nations when anyone — be it a corporation or individual ‘free miner’ — applies for a mineral tenure in their territory. DRIPA argument for application of the higher standard of free, prior and informed consent to mining claims staked was not successful. Nation is weighing options to appeal.

April 2023 – BC Supreme Court Hearing

April 3-17 – Gitxaala’s case is heard at BC Supreme Court, presenting expert reports, oral and written arguments. Intervenors make submissions.

December 2022 – Intervenors Apply

Dec 15 – 9 Intervenors successfully apply to intervene in Gitxaala’s case. Gitanyow Nation, Ts’kw’aylaxw First Nation, the B.C. Assembly of First Nations, First Nations Summit, and Union of British Columbia Indian Chiefs are funded through RAVEN’s Intervenor funds: all applications are accepted.

September 2022 – Joinder

Sept 15 – BC Supreme Court ordered Ehattesaht Nation and Gitxaala’s mining challenges be heard as one case, citing similarities.

October 2021 – Petition Filed

Oct 25 – Gitxaala Petition filed in BC Supreme Court.

Questions & Answers

Who are the Gitxaała?

Gitxaała is one of the most ancient societies on the coast. In their language, Sm’algyax, the Gitxaała refer to themselves as Git Lax M’oon (“People of the Salt Water”). Their main community, the village of Lach Klan (Kitkatla) has been continuously inhabited since time immemorial.

Gitxaała hereditary house leaders from the four clans – Gisbutwada (Blackfish), Ganhada (Raven), Lax Sgyiik (Eagle) and Lax Gyibu (Wolf) – manage and protect their house territories and resources according to their ayaawx, or Gitxaała laws. Gitxaała harvesters use almost 100 different marine and terrestrial species to feed their community.

Gitxaała citizens, wherever they reside, celebrate their history, practice their traditions, respect their laws, and cherish their lands, waters and resources. (Source: Gitxaała Nation website).

Where is Gitxaała located?

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.

Why are the Gitxaała opposed to mining on Banks Island?

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.

The mine site and the affected bodies of water have not been remediated to this day.

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.

What is the legal challenge about?

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.

On what legal grounds are the Gitxaała suing B.C.?

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.

How are the Gitxaała affected by B.C.’s mineral tenure regime?

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.

What happens if the Gitxaała win?

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.

Where does the money go?

All the funds raised for Gitxaała Nation campaign go to Indigenous litigation. 85% of the funds raised go to Gitxaała Nation to fund their legal challenge. RAVEN receives 15% of campaign funds raised to sustain our operations.

What happens if we can't use the funds raised?

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).

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