Transcript
Speaker: I'm Jane Williams. This is the Red Eye Podcast. You can hear our live broadcast on Saturday mornings from 10 till noon at 100.5 FM in the Lower Mainland.
Speaker: On the podcast today, Lauren Chisholm talks with Jamie Neen of Mining Watch Canada about a recent BC Court of Appeal decision that confirms that the province needs to bring its mineral staking system into the 21st century.
Speaker: The Gitkatla and Ahat-Azat First Nations, supported by several interveners, have been challenging BC's free-entry mining regime in court. Under the regime, anyone could register a mineral claim online with no notice, no consultation, and no consent from indigenous nations. In a precedent-setting decision released last week, the BC Court of Appeal has affirmed that the BC Declaration on the Rights of Indigenous People Act, known as DRIPA, creates legally enforceable obligations on the province.
Speaker: Jamie Neen is Mining Watch Canada's Outreach Coordinator and Canada Program Co-lead. He is co-chair of the BC Mining Law Reform Network. And Jamie's here with me now. Hello, Jamie.
Speaker: Pleased be with you. Now, the existing mining claims process really seems like a relic of the Wild West. Lay it out for us. How does free entry mineral tenure work?
Speaker: Yeah, it is literally a relic of the gold rush. This is a law that's been around since about 1860, I think 1858 originally.
Speaker: And it allows anyone who's registered as a quote unquote free miner, which doesn't actually take any qualifications, can go online and click and claim a mining claim pretty much anywhere in the province. There are some restrictions, you know, you you can't,
Speaker: stake a mining claim in a schoolyard, for instance, but pretty much anywhere else. you can You can stake a claim, you pay a nominal fee, and then you have a legal interest in that area, which you can then convert automatically to a mining license. There are permits when you need to start doing activities like drilling, but basically you're allowed to go onto that territory using hand tools. You can dig and sample and and so on.
Speaker: And nobody can stop you. And how does that impact First Nations? So both legally and practically, I mean, practically, it means that people have somehow acquired rights on your land and can invade you at any time.
Speaker: That also applies to to private property owners and and so on. So, you know, we've got stories of people who were you know, sitting on their back porch, having a glass of wine when the machinery showed up.
Speaker: and they were unaware that their property had been claimed. and mean, that's sort of the extreme, but basically it means that people can do things in your territory, and legally what it means is that someone else has acquired a legal stake in your territory. So if you are a First Nation and you have title, or if you are asserting title, as the colonial authorities would have it, this is your territory, and you now have...
Speaker: people from outside with no connection or qualifications or even communication with you, acquiring a legal right, you know, not just access, but a legal right that they can now buy and sell in your territory.
Speaker: And that's what Gikatla and Hadassat were objecting to. Now, last Friday, the Court of Appeal overturned a lower court decision from the BC Supreme Court. Tell us about the original case where the Gikatla First Nations challenged the BC free entry mining regime.
Speaker: It's a bit of a long story if we get into all the details, but you know there was ah There was a small gold mine on Banks Island in Gikatla territory that was an environmental disaster, ah dumping effluent directly into the the stream nearby and and so on.
Speaker: and I think that's what pushed Gikatla over the edge. and They said, we we can't have this happening in our territory anymore. and you know They realized that this was just one of a number of mining claims. This was the only one that had had progressed to a a mine that created that kind of problems. But You know, the rest of the territory had claims on it and was vulnerable.
Speaker: And they they came to court and said, we have our own legal system. We have traditions that are thousands of years old that tell us how to govern this territory and work with the environment and have systems of control. And and they explained to the court their whole hereditary legal system.
Speaker: how it works, what the checks and balances are, the accountability of hereditary chiefs and and officials, the role of the matriarchs, the whole nine yards. they They laid it all out and they don't have a title claim that's recognized by the Canadian legal system, by the the colonial system. They're asserting that this is their territory and that they have maintained governance of it for generations and intend to keep doing that and that BC essentially was just bulldozing not only their territorial rights, but their their whole governance system by allowing things that they would never allow, for instance, in their territory.
Speaker: And so they asked the court to essentially nullify the Mineral Tenure Act within their territory. They weren't asking for all of the province.
Speaker: but to declare that it was unconstitutional and furthermore violated the Declaration on the Rights of Indigenous Peoples, implemented by BC, of course, in the Declaration Act, and canceled the mining claims existing mining claims in their territory.
Speaker: So the court went part way. the The court found that the Mineral Tenure Act is indeed unconstitutional because it provides no opportunity for consultation.
Speaker: but you know Section 35 of the Canadian Constitution guarantees consultation for Indigenous peoples in matters affecting their territories. This is clearly that.
Speaker: And since there's not even notification attached to this, there's no way there could be consultation. The Kekatla legal team had presented a number of ways that under the existing law, of it you know the chief gold commissioner, who's the person in charge of all of these mining claims, could...
Speaker: take measures within the law to allow for consultation to take place and even for consent to be sought. But this was not being done and there was no indication from the province that they they were going to do that. So the the judge said, okay, you have BC, you have 18 months to bring your law into compliance with the laws of Canada, the constitution.
Speaker: They didn't go any further than that. And that was sort of a that was sort of the sticking point. So the court did not nullify the existing claims in either Hadassat or Gagatla territory.
Speaker: And the judge said that the UN Declaration and the DRIPA were advisory, that they were not legally enforceable, that they were sort of interpretation guides. And so he could find directly with respect to the the constitution that this was unconstitutional, but He couldn't say that it wasn't compliant with the UN Declaration because the the law wasn't actually enforceable.
Speaker: And that is what Gikatla took under appeal. So they said that, you know, that's that's just not good enough. Now, the and NDP government in BC acknowledged the free entry system violated Section 35 of the Constitution, as you say, the duty can to consult, and released a new framework this past spring. Why did the Gitgatla and Ahat-Azat pursue an appeal instead of relying on the provincial government to amend its mining regulations to align with UNDRIP?
Speaker: Well, this is where it gets interesting because the the government had previously acknowledged that the Mineral Tenure Act specifically was also not compliant with DRIPA.
Speaker: So in a previous version of the BC NDP government, that government had said, we brought in this recognition of the UN Declaration. The one piece of legislation that we can point to that we know is not compliant is the Mineral Tenure Act. So we're going to fix that.
Speaker: And they had promised a process to reform, basically repeal and replace the Mineral Tenure Act with something that would respect not just consultation but also consent and meet the standard of the UN Declaration.
Speaker: They hadn't done that, obviously, by this time. And so when the court made this order, they said, you know, if you have 18 months to reform the the law. That was restricted to consultation as required by the Canadian constitution. So it did not go to consent. It did not meet the UN declaration standard.
Speaker: And that was what was under appeal. And I think a lot of the other observers and interveners and so on, and people who had worked very hard to get the declaration act in place, were kind of shocked that it wasn't actually enforceable.
Speaker: What were we doing all that time? You know, what was all that political effort for if it's not enforceable? So a lot of the First Nations leadership, the BC Human Rights Commission and so on, and a lot of other First Nations were quite interested in this idea that the Declaration Act was not actually enforceable.
Speaker: So that was the crux of the appeal. And initially there was also the question of those mining claims that the court had declined to throw out. Now the province actually took action in the meantime to remove those mining claims.
Speaker: So that was also removed from the appeal. And it's a little bit of a wrinkle, but I think important for people to know that those claims actually were annulled by the province.
Speaker: And there's, you know, whatever process taking place to to reclaim those from the people who'd stake those claims. Now, the decision at the Court of Appeal last Friday is seen as being an important victory. What did they say about BC's mineral claim regime in relation to UNDRIP?
Speaker: It was... Pretty straightforward. It said this is not compliant. It said first that the Declaration Act is indeed enforceable. There's a whole series of arguments about international law and international conventions becoming law in Canada.
Speaker: And this is a declaration. It's not a convention. It's not like the Landmines Convention or or other and international or UN agreements. It's not a treaty.
Speaker: It is a declaration that Canada has adopted, and but then if Canada and BC have both adopted it into law, that does make it enforceable. It does become part of Canadian law, and it hasn't been met, and therefore the Mineral Tenure Act needs to be revised to meet that criteria.
Speaker: So what's BC now legally obligated to do in terms of this free entry so-called free entry process? Well, most of us would say that it needs to proceed with the process of reforming the Mineral Tenure Act, that there's a very clear commitment that they themselves made several years ago that they're now being called to by the courts to meet, which is to simply make the Mineral Tenure Act compliant with the UN Declaration Standard of Consent.
Speaker: And it means going a bit further than they have already because they did introduce, and you know this is how they met the original court order a series of changes to the existing act. So they introduced a mineral claim consultation framework, which it's kind of ah inadequate.
Speaker: i mean, obviously it doesn't meet the the question of consent, but it does provide a window of consultation. So instead of filing a claim, you file a request for a claim and then the chief gold commissioner, the person in charge of all this, goes to the First Nation whose territory it is and lets them know that somebody wants to file a claim in a particular area of their territory.
Speaker: And they have 30 days to object. And then if they do object, then there's a process to try and address whatever concerns they have. So there is ah a bit of a consultation. You know, the 30 days is a bit of a funny restriction.
Speaker: know, I mean, what if that happens in the middle of fire season or something? You know, how is that a valid deadline? But also, there's also a negative option. So if if there is no response within 30 days, then it goes through automatically. So it's really an inadequate response.
Speaker: But it is a response. You know it's some kind of a response to the question of consultation. And it does show that there are ways of doing this that, don't throw the industry into complete turmoil.
Speaker: the sky does not fall on the mining industry if they have to ask permission before they go ahead with whatever they were going to do. So that's where bc got to and where BC needs to go is simply to to finish the job. The problem seems to have arisen and you know we used to see the comments from David Eby about maybe we need to change the Declaration Act instead.
Speaker: In other words, I think what he's saying is we goofed. If this is actually legally enforceable, then then that wasn't what we meant to do. And I think that is opening a whole can of worms, both in terms of the legitimacy of the government's original commitments, but also the relationship between the the government and First Nations. And I think all residents of the province that thought that this was a serious commitment And when you put something into law, that that's actually what you intend to follow through on
Speaker: And the the message we're getting back seems to be, oh, we didn't we didn't actually mean that. to And now that we actually have to follow through on it. you know it's It's really building on on a real you know the kind of racist backlash that we've seen in the last few years against any recognition of First Nations rights and title.
Speaker: Jamie, victories for human rights and mining regulation are pretty hard won these days, as we know. How do you think people can push back against that kind of response from the BC government?
Speaker: Well, I guess there's two things come to mind. and And one is simply to hold them to their word. You know, when they brought this legislation in, everybody knew what it meant, or we thought we knew what it meant.
Speaker: And in your... subsequent terms in office, you don't get to turn around and and redefine things and go back on those commitments. But the other is trying to build an understanding of what the mining regime is, what the mineral tenure regime is why it is problematic and needs to be changed anyway, and why building a system that is actually founded on First Nations engagement and consultation and consent, as well as protection of biodiversity and other land uses and the interests of other stakeholders, shall we say, ranchers,
Speaker: ranchers and so on, people who have other forms of tenure on Crown land all need to be integrated and respected so that you know we we can come up with a system that says there are places that are not suitable for mining, that for questions of cultural importance, of biodiversity protection, of watershed protection,
Speaker: areas that are are sensitive for for whatever reason can be excluded from mining and the mining industry can have greater certainty by not going into places where you know they're going to get into a big battle and actually probably lose the ability to develop a mine if they think they have one.
Speaker: And instead, we can talk about what projects and what areas should be mined. If there are you know so-called critical minerals, if there's a need for ah mining development and for a particular mineral, where can that happen?
Speaker: And not just where is it most profitable or accessible or randomly available to the mining industry. And that's the that's the hard part because so much of the, especially the mineral exploration sector is kind of speculative. So these mining claims have a life of their own. You get a mining claim.
Speaker: As I say, you you you now have a legal right to something and it may turn out to have a lot of value and become a producing mine, but in most cases it doesn't.
Speaker: And so there's a whole level of essentially speculation in between that says, well, this property might be worth something and maybe I'll get some investors to back me and do some drilling and maybe it will become something and maybe it won't.
Speaker: And maybe the investors will lose their money, but maybe they'll make 10 times more. And all we're saying is, that if society needs mines and needs mined materials, then we treat that as a social need, not as a speculative adventure for investors.
Speaker: At the expense of all of those things, First Nations territorial rights, cultural protection, biodiversity protection, all of that is part of what British Columbian society, Canadian society,
Speaker: things that we value that need to be protected, and we need to make these things work together. Well, it's been really good talking with you. Thanks so much for joining me.
Speaker: Well, thanks for having me. I've been speaking with Jamie Neen. Jamie is Mining Watch Canada's Outreach Coordinator and Canada Program Co-lead. He is co-chair of the BC Mining Law Reform Network.
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Speaker: I'm Jane Williams. Thanks for listening.
