Gitxaała is Heading to Court
Legal challenges are like icebergs.
There is a mass of work involved in preparing arguments, collecting evidence from elders and community members, pulling together expert reports and interviewing plaintiffs. While the work of RAVEN supports that process every step of the way, it’s only when Nations are in court, at hearings, that all that work sees the light of day and becomes visible.
So it’s always a bit of a celebration – albeit, one with a lot of nail biting — when a case that has been long prepared for finally gets in front of a judge. On April 3 2023, Gitxaała Nation’s long awaited challenge to B.C.’s Mineral Tenure Act will be heard at the B.C. Supreme Court: but the Nation isn’t going in alone.
For years now, RAVEN has dreamed of creating a fund so that other Nations, affected by similar oppressive governments and industries, could intervene in cases to bring new evidence and to have their concerns addressed without having to mount their own costly legal cases. In 2021, our Intervenor Fund was born: and next month’s Gitxaała case is where our donor’s investments will start to pay off.
There are eight different intervenors joining Gitxaala in court: seven of them are lining up behind the Nation to support an overhaul of a mining regime that — right now, allows anyone with $25 and a laptop to stake a claim in Indigenous territory without so much as notifying the Nation. RAVEN is proud to be supporting Gitanyow Nation, Ts’kw’aylaxw First Nation, Nuxalk First Nation, the B.C. Assembly of First Nations, First Nations Summit, and Union of British Columbia Indian Chiefs through our Intervenor Fund. Collectively, these intervenor’s wisdom will be brought to bear to send a unified message: that Indigenous People’s stewardship vision for their lands and waters is being severely compromised by an unjust mining regime in B.C.
Aside from the fact that lack of Indigenous consultation contravenes B.C.’s own DRIPA legislation, the granting of mineral claims hampers conservation initiatives such as Indigenous protected areas since the provincial government is forced to pay compensation to mineral rights holders if they aren’t able to proceed with mining activities.
Tara Marsden, a representative of Gitanyow hereditary chiefs, explains.
“The shell game the mining industry is playing with Indigenous lands and taxpayer dollars needs to be overhauled. In our case, we have been told that in order to protect our critical salmon spawning habitat, government would have to pay the tenure holders between $4 and $7 million in compensation. This regime of compensation is a significant barrier for government, and prevents them from protecting critical areas needed for biodiversity and climate resilience.”
Because B.C.’s mineral tenure system makes it so easy for anyone to stake a claim, companies have begun using the claims process to speculate — not for minerals, but for compensation.
“While companies go mining for compensation, taxpayers end up footing the bill for costly litigation and resolution of land-based conflicts.”
Mining justice advocates have long cried foul on these practices, but now a powerful coalition of Nations and their allies is standing up and saying, “Enough.”
In addition to the eight intervenors, Ehattesaht First Nation in Nuu-chah-nulth territory on Vancouver Island, who brought a similar petition before the courts last year, will have their case heard together with Gitxaała’s. This ‘joinder’, as the court calls it, strengthens Gitxaała’s position: the two Nations are now bound together in their pursuit for justice.
Strengthened by numbers, Gitxaała will tell their story in court from April 3rd to the 17th. Beginning with a walk through the Indigenous legal frameworks that guide them in their land-use planning, Gitxaała and their counsel will zoom in on the sorry tale of Banks Island. Here, in a place known as Lax k’naga dzol, a mine known as Yellow Giant abandoned 200 kgs of waste material in the streams of this salmon estuary when the company was forced to stop operating by order of the province of BC.
In a province as mining-friendly as B.C., where mining is given legal priority ahead of just about any other land-use option, it’s a bit of a surprise that regulators could have been so proactive. That’s because – well, they weren’t. It was only as a result of an employee blowing the whistle on the company that the Ministry of Energy and Mines inspected the site and found that the company had spilled toxic tailings into just about any body of water in the vicinity, poisoning a lake, a creek, a pond, and wetlands on Banks Island.
The company responded immediately: by filing for bankruptcy. Listed among B.C.’s “dirty dozen” top polluting mines in a report released by BC Mining Law Reform (who will also be intervening in Gitxaala’s challenge), Banks Island Gold did nothing to remediate the site for five long years, allowing heavy metals to leach into salmon-bearing streams on Indigenous territory.
When Gitxaała learned that not one, but up to 13 more prospectors were eyeing Lax k’naga dzol for potential mining projects, they drew the line.
Their legal challenge is aimed squarely at changing outdated and unjust regulations once and for all. Together with the BC Human Rights Commissioner, the Union of BC Indian Chiefs, Mining Justice Canada and a group of environmental NGOs, they are forming a coalition of conviction to protect the rights not only for their own communities, but of everyone, everywhere in this province.
It’s a landmark challenge. RAVEN will be there, livestreaming from the courthouse and sharing updates along the way. We’ll also be TRIPLING donations to Gitxaała for the duration of the hearing.
It’s not everyday you get to change the course of history: please give generously to amplify your impact.