Despite having only 2 weeks to prepare, Lisa Fong’s legal team, together with Gavin Smith of West Coast Environmental Law, presented so many pages in their 89-page submission of their closing arguments, they exceeded the upload bandwidth of the Law Courts’ portal.

With just one day to sum it all up, Gitxaała’s lawyers did a masterful job. 

After a gruelling 3 weeks of hearings, a final day was given so that Gitxaała and Ehattesaht, who were arguing their cases in tandem, could have the last word in this challenge to Big Mining in B.C. 

One of BC’s arguments in this case has been that consultation, as it is being done today, (ie., NONE on mineral claims staked in Indigenous territory) is adequate. The province’s lawyers also asserted that there has not been any major change in social attitudes that would warrant changing the law.

That’s simply — and demonstrably — false.

In their closing arguments, Gitxaała counsel read from B.C.’s very own Declaration on the Rights of Indigenous Peoples Act (DRIPA)  to prove that the duty to consult applies to the granting of mineral tenures.

Gitxaała’s team reminded a packed courtroom that the province’s argument  that their current practice — not consulting, or even bothering to inform Indigenous Nations about mineral staking in their territories — is unlawful.

B.C.’s argument is grounded in the outdated idea that the duty to consult is only triggered by a project, not by the granting of mineral claims.

But those claims allow people to enter Indigenous territory, set up camps, dig pits, clear brush and cut trees — often with devastating results on the environment, including the medicinal and food producing plants that Indigenous Peoples hold relations with. The claims and exploratory mining activities also violate Indigenous law, sovereignty, and land stewardship practices that are integral to Indigenous Nations.

B.C. determines that activities associated with mining claims have ‘nil or no’ impact on Indigenous rights was done without any consultation with Indigenous Peoples. Pointedly, Smith asked just how the government is so sure the impacts are ‘nil’,  when they haven’t even asked Nations whether they are impacted? We’re talking about legally permissible activities that allow corporations and ‘free miners’ to trespass on unceded lands in total disregard of land use planning, cultural practices and traditional uses of the land as laid out by Indigenous governments, hereditary chiefs, and communities.

To assist the court, lawyers for Gitxaała brought forward a set of principles based on UN Special Rapporteur’s work interpreting UNDRIP, and applied these principles to the arguments that BC made.

The UN Special Rapporteur’s statement contains 7 relevant principles regarding consultation under UNDRIP, laying out more stringent requirements than those established under Haida test for duty to consult.

#1 The purpose of UNDRIP is to reverse the historical trend of exclusion of Indigenous Peoples in decision making, to effectuate substantive Indigenous rights.

#2. Consultation is engaged whenever Indigenous People’s interests will be affected by state conduct in ways that are not felt by others in society.

#3. UNDRIP consultation requirements must be engaged by resource tenure grants: at the earliest opportunity possible.

#4. Obtaining consent is always required. Because customary tenure over their lands is necessary to their survival as people, this is a requirement for any extractive operations within customary tenures of Indigenous Peoples.

#5. The state bears the burden of demonstrating that no UNDRIP rights are being infringed.

#6. The veto concept is not present in UNDRIP: government’s focus on conflating consent with ‘veto’ powers is regrettable and contrary to the spirit of UNDRIP.

#7. UNDRIP requires consultation and consent regardless of whether rights are asserted or recognized.

While all of this is highly technical, supporters of Gitxaała likely share the sentiments of Lisa, Gitxaała’s lead lawyer, who sent out a message of gratitude delivered to leaders outside the courts on May 19. She says, “Ohhh I hope you win this case! I am so anxious but unwavering in my support of this cause. Thank you, thank you for this! Go forward brave ones, I walk in solidarity with you.”

Support from the RAVEN community has made these final arguments possible: the addition of extra dates to the hearings added costs to the case. At every step, RAVEN’s community has risen to the occasion, pulling in an astonishing $210k in just over a month.

Seeing grandparents, children, young Indigenous scholars, friends, and neighbours come out to support Gitxaała on the courthouse steps made it more than obvious that social attitudes have undergone a sea of change. The work being done by Indigenous Nations is not only aligned with the wants and needs of the citizenry at large: we are investing in that work, starting with donating to support court challenges like this one.

We’re all leaning in to see justice done. It will now be some months’ wait before we hear a decision from the court. Meanwhile: to everyone who bore witness, attended rallies and webinars, donated and expressed solidarity in so many ways: thank you. The closing arguments delivered on the morning of May 19th was the flowering of a generation of work by Gitxaała and their allies. It has been an honour to share that experience with this community!

It’s not too late to deliver your message to Gitxaała leadership: send a message of gratitude and support here.