Case: Gitxaala/Ehattesaht
Firm:  Arvay Finlay
Outcome: hearing held at BC Supreme Court in December 2022.
Awaiting ruling

The Gitxaała case is the first to challenge BC’s free entry mineral tenure system, established under the Mineral Tenure Act (the “MTA”).  The Gitxaała case is over specific mineral claims, but it is also a challenge to a provincial law that affects all First Nations in BC. 

Gitanyow is exercising its own jurisdiction to protect sockeye spawn in the Meziadin watershed in the face of provincial inaction, because of mineral claims.

This is the third-largest run in BC, but the province refuses to act due to existing mineral tenures and despite an existing provincial conservancy. Mineral exploration companies have staked claims in the northern Coast Mountains, above salmon habitat that needs protection. Gitanyow recently exercised its inherent governance rights to establish an Indigenous Protected and Conserved Area, the Wilp Wii Litsxw Meziadin Indigenous Protected Conserved Area (the “IPCA”) to protect the salmon in the face of provincial inaction. 

The IPCA follows a land use plan agreed on with the province in 2012; the province has not respected Gitanyow’s right to apply land use planning objectives over staked land, and refused to extend protected areas over staked lands; therefore, Gitanyow acted where the province would not. The existence of mineral tenures granted without consent has posed barriers of Gitanyow’s protection of the area through Crown legal tools. These claims were staked in Gitanyow territory without consent and actively prevented Gitanyow from exercising its inherent rights over the staked land. Gitxaała’s case could greatly benefit Gitanyow’s ability to have its jurisdiction respected going forward.  

Given Gitanyow’s unique struggles with mineral tenures impacting its ability to manage its Territory, described above, Gitanyow can provide the court with a novel perspective on the impacts of the mineral grant regime on its distinct governance structure, thereby providing the court with a fuller understanding of the extent of the impacts of the mineral grant regime.

It is important for the court to understand that the MTA impacts not just Gitxaała, and that reform is needed to properly respect the rights of Indigenous peoples everywhere in B.C and throughout the federation.

Therefore, Gitanyow’s perspective makes it more likely that the Court will agree that the mineral grant regime is inconsistent with UNDRIP, and/or is inconsistent with S.35(1).