T’SKWAY’LAXW intervene on Gitxaala mining justice challenge
Firm: Karim Ramji, Legal Counsel
Outcome: hearing held at BC Supreme Court in December 2022.
This is a challenge to the constitutionality of the Mineral Tenure Act (the MTA). The Ts’kw’aylaxw First Nation (TFN) has deep experience in dealing with the adverse impacts of mining activities on its lands. The promise by the Province that it will properly consult the TFN on governmental decisions has been breached numerous times. The TFN is in litigation against the Province for failing to properly regulate mining activities on their lands.
Currently, there is mineral exploration activity taking place within the Traditional Territory by resource companies. This is being done without the consent of the TFN. Given our adverse experience with mining, T’skway’laxw do not want any further mineral exploration or development in our Traditional Territory, without our consent.
The enactment of UNDRIPA by BC means that that the MTA is inconsistent legislation and cannot stand as currently enacted.
The judicial review is being advanced by the Gitxaala Nation, who are represented by Lisa Fong QC and by Gavin Smith of West Coast Environmental Law. This is a strategic intervention being made at the behest of the legal team of the Gitxaala Nation to provide a broader geographic representation and allow the interveners to help advance some of the legal arguments that arise from this JR.
The respondents, including BC has not yet filed its response to the JR application. As there are going to be a number of First Nation interveners, it is expected that counsel will collaborate and coordinate on the issues that will be strategically advanced by the interveners.
TFN has direct experience with BC failing to consult with TFN and refusing to regulate a mine (Graymont’s Pavillion Mine) which operate under provincially issued Mines Act permits. This perspective will help to counter the position that will likely be advanced by BC that it will properly consult and accommodate when more intrusive and permanent activities will take place. The inadequacy and shortfall of reclamation security is presently a major issue for TFN.
This intervention is assisting the relevance of reconciliation through the DRIPA legislation here in BC, because of this it is also helping our Gitxaala and Heiltsuk campaigns. It may also have impacts on Attawapiskat, Neskantaga, and Grassy Narrows due to its relevance in the ON courts.