Court of Appeal grants status to interveners in Gitxaała human rights appeal over mineral tenure regime

In September 2023, Gitxaała Nation and Ehattesaht First Nation won a major victory: the BC Supreme Court declared that BC’s automated online system for granting mineral claims breaches the Province’s constitutional duty to consult and accommodate Indigenous Peoples.

The Province’s current system allows any Canadian company or resident over the age of 18 to sign up to be a “free miner” and then – for a fee of $1.75 per hectare – to acquire a mineral claim automatically with an online credit card payment. Some readers may recall when Bev Sellars, former Chief of Xatśūll First Nation, staked a claim on Mines Minister Bill Bennett’s private property to make a point of just how easy it is. No consultation with Indigenous Peoples required – and certainly no consent.  

As Gitxaała Chief Councillor Linda Innes wrote in a statement, the Court’s ruling in September “makes clear what we knew all along: BC owes a duty to consult Gitxaała and other Indigenous nations prior to granting mineral claims in our territories, and it is breaching that duty.”

But while claim staking and mining activities in areas within Gitxaała territory have come to a temporary halt thanks to recent protection orders that Gitxaała negotiated with BC, the Nation is moving ahead with a partial appeal. That’s because the Court’s decision was only a partial victory.

The case was also the first time courts have weighed in on the legal effect of BC’s Declaration on the Rights of Indigenous Peoples Act (“DRIPA”). DRIPA affirms the application of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) to the laws of BC, and says that the Province “must take all measures necessary” to ensure its laws are consistent with UNDRIP. Gitxaała argued that this section of DRIPA is legally enforceable, and that DRIPA means all law in BC must, whenever possible, be interpreted and applied in a way that doesn’t contradict UNDRIP.

The Court disagreed, concluding that UNDRIP “remains a non-binding international instrument” and that DRIPA’s requirement of BC to take “all measures necessary” for UNDRIP consistency is not “justiciable” (i.e., not enforceable by a Court).

This matters because UNDRIP holds the Province to a higher standard than the duty to consult and accommodate, which requires Crown governments to consult with Indigenous groups whenever government action might negatively impact “Aboriginal and treaty rights,” but does not ultimately require the free, prior and informed consent of Indigenous Peoples for projects to go ahead.  (For a deeper dive into the duty to consult and how it relates to Indigenous laws and UNDRIP, check out this podcast series from the Centre for Constitutional Studies.)

While BC promised in its DRIPA action plan, released two-and-a-half years ago, to “modernize” the Mineral Tenure Act – and still repeats that promise – BC has yet to bring forward any reform proposals and continues to fight against Gitxaała’s case.

So, the question of whether the province is legally required to align its mineral tenure regime with UNDRIP is important. If the answer is yes, then this will shape standards for a new mineral tenure law and ensure BC is held accountable to its commitments. The same question is also important for countless other provincial laws that don’t align with UNDRIP: is BC’s legislated commitment to UNDRIP just a political promise, or is it legally enforceable?

Now, Gitxaała is headed back to court to make sure that BC is held accountable for aligning its laws with UNDRIP. And the Nation is not alone: on June 6th, Justice Grauer of the BC Court of Appeal granted status to four interveners in Gitxaała’s appeal and a related appeal by Ehattesaht First Nation.

What is an intervener?

Interveners are individuals or groups who have an interest in the outcome of a case but aren’t themselves ‘parties’ to the case. A ‘party,’ by contrast, is either responsible for starting the legal action (e.g., Gitxaała) or responding to it (e.g., British Columbia). Interveners are independent from parties.

In Canada, we have what is known as an adversarial legal system. The term adversarial may recall famous foes like the Capulets and Montagues, or Obi-Wan and Darth Maul – and in some cases, perhaps rightly so – but the basic idea is that the parties, by engaging in rigorous competition, will scrounge up all the evidence necessary for a judge to come to a fair conclusion. Judges can’t consider evidence – or legal arguments – that aren’t presented to them in court.

There are many critiques of this system, including that parties don’t always have equal means to bring forward evidence, and that the interests of the parties may not represent the interests of everyone who stands to be affected by the court’s final decision. These are some of the reasons why intervenors are so important: they bring a different and unique perspective that courts might not otherwise hear. In this way, interveners help the court come to a fair conclusion.

Who are the interveners in the appeal?

One of the interveners in Gitxaała’s appeal is BC Human Rights Commissioner Kasari Govender. In September, Govender told journalists that the BC Supreme Court’s ruling on DRIPA felt like “a big disappointment and a step back… When most of us saw that [DRIPA] was being brought into force here in B.C. we understood that to mean that UNDRIP was going to have real force and effect here in our laws and in our legal system.” Govender intervened previously in Gitxaała’s case, arguing that the intent behind DRIPA “was to pass human rights legislation specific to Indigenous Peoples.”

Amongst the other interveners is a coalition made up of the Union of BC Indian Chiefs (UBCIC), the First Nations Summit (FNS), the BC Assembly of First Nations (BCAFN), and the BC Civil Liberties Association (BCCLA). Last year, the UBCIC passed a resolution demanding the full repeal and replacement of the Mineral Tenure Act to align BC’s mining laws with UNDRIP. Full repeal and replacement – not just ‘reform’ – is especially important given the harmful colonial roots of the Mineral Tenure Act.

In their application to intervene, the coalition also pointed out that, since the BC Supreme Court’s ruling back in September, the Supreme Court of Canada has released not one but two new decisions that consider how UNDRIP applies to Canadian law.

For context: in 2021, two years after BC passed DRIPA, the federal government passed its own law called the United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDRIPA”). Some of the language in UNDRIPA is identical (or nearly so) to that in BC’s DRIPA, including that Canada “must take all measures necessary” to ensure its laws are consistent with UNDRIP.

In the case C-92 Reference (Reference re An Act respecting First Nations, Inuit and Metis children, youth and families), the Supreme Court said that UNDRIP has been “incorporated into the country’s domestic positive law.” In Dickson v. Vuntut Gwitchin First Nation, the Court confirmed that UNDRIP had been “brought into Canadian law.”  

In addition to the BC Human Rights Commissioner and the Indigenous-led coalition, the Court of Appeal also granted intervener status to two different mineral exploration interests: the Association for Mineral Exploration British Columbia (AME) and Cheona Metals Inc. According to a memorandum filed for the hearing on June 6th, the AME intends to argue that the BC Supreme Court interpreted DRIPA correctly. Cheona Metals Inc. – a mineral exploration company created by Allen Edzerza, a Tahltan Nation Elder, in partnership with First Tellurium Corp. – has a different perspective.

Cheona Metals Inc. says it intends to argue that, regardless of DRIPA, Canadian law must be interpreted in a manner that conforms with UNDRIP. Why? Because in 2016, Canada endorsed UNDRIP without qualification, and because Cheona argues some of the rights contained in UNDRIP – like the right to self-determination – are also fundamental rights in customary international law, meaning they are already part of the common law in Canada.

In an opinion piece for the National Observer, Edzerza wrote:

While it’s important for us to move away from dirty fossil fuels to curb the impacts of the climate crisis, it’s even more important to ensure this transition doesn’t make the same mistakes and perpetuate the same harms as extractive industries, like oil, gas, and mining companies, during this pivotal moment. Investing in technology to reduce the demand for minerals needed in this clean energy transition is critical, but mines still need to be built to meet the moment… Indigenous communities must be meaningfully engaged in the mining process from day one. That might even mean saying no to mining if the impact on our land, people, environment, or subsistence lifestyles is too great.

From Cheona’s point of view, compliance with UNDRIP is a necessary and positive step for the mining sector.  

What is next for the appeal?

The hearings for Gitxaała’s appeal will likely take place in early 2025.  

On June 6th, Justice Grauer of the BC Court of Appeal decided that the BC Human Rights Commissioner, the coalition of Indigenous organizations and the BCCLA, and Cheona Metals Inc. will each be allowed to file a standard 10-page ‘factum’ – a written legal document describing their arguments – for the court to consider in the appeal. Meanwhile the AME, as the only intervener whose arguments generally align with the province, will be allowed to submit a 20-page factum.  

The intervener hearing on the 6th was over in a little more than an hour – about as long as it takes to become a miner in BC right now. After granting the interveners status, Justice Grauer, dressed in his solemn judicial robes, stood to leave the courtroom. Before he did, however, he offered an initial opinion: “it sounds like a very interesting one.”

Top photo: Gitxaała leaders and supporters en route to the Courthouse for April 2023 hearing / Alexis Stoymenoff

Kai Fig Taddei, Summer Law Student