Gitzxaała Nation and Ehattesaht First Nation argue the 2019 law is enforceable in court
The British Columbia Court of Appeal heard arguments this week in appeals brought by Gitxaała Nation and Ehattesaht First Nation, which argue that the province’s commitment to aligning its laws with a United Nations resolution to uphold Indigenous peoples’ rights is enforceable in court.
The appeals also seek to clarify how that commitment, which BC codified in the Declaration on the Rights of Indigenous Peoples Act in 2019, should apply to the province’s laws.
Jessica Clogg, executive director and senior counsel at West Coast Environmental Law, told Canadian Lawyer the case represents the first time that an appellate court will consider the enforceability and interpretation of the 2019 law, which is known as the Declaration on the Rights of Indigenous Peoples Act, or DRIPA.
“This is new ground for our courts generally,” says Clogg, who represents Gitxaała Nation. “Gitxaała and Ehattesaht and the interveners all expressed essentially different pathways to get us to a place where DRIPA is justiciable.”
The dispute began in 2021, when Gitxaała Nation sued BC to challenge the province’s mineral claim staking system. Under the province’s Mineral Tenure Act, the province was able to grant individuals and companies mineral rights in Indigenous territories without first consulting or receiving the consent of the communities that traditionally occupied them.
Gitxaała Nation said the system has allowed BC to grant dozens of claims on its territory without consent or even notification. One project that was authorized under this system, the Yellow Giant gold mine, illegally discharged hundreds of thousands of litres of waste into Gitxaała territory.
The next year, Ehattesaht First Nation filed a similar lawsuit against the province. The cases were heard together.
In 2023, the BC Supreme Court ruled that the province’s regime for granting mineral rights violated the provincial Crown’s constitutional duty to consult. The court gave the province 18 months to work with First Nations to design a new mineral claim staking system.
However, the court rejected two other arguments by the nations: that BC’s mineral claim staking system is inconsistent with the UN Declaration on the Rights of Indigenous Peoples, and that the province has a legal duty to change the system to align with the UN declaration.
The nations now argue that BC’s proposed framework for a new mineral claim staking system has no teeth and does not reference the standards set out by the UN declaration, which the UN passed in 2007. The BC legislature passed DRIPA in 2019, which mandates, among other provisions, bringing provincial laws into alignment with the UN declaration.
For the nations, a failure to comply with this DRIPA mandate is enforceable in court. In contrast, BC argued that its mineral claim staking system’s consistency with the UN declaration is not justiciable, at least in this specific case. The province added that inconsistencies between the system and the UN declaration should be resolved outside of court through consultation and cooperation between the government and Indigenous peoples.
Clogg argues that the BC Supreme Court made a key error “in finding that [DRIPA] did not create rights or obligations which were enforceable in court, but merely a political accountability mechanism.”
She notes that BC did not include reforming its mineral claim staking system in its action plan for implementing DRIPA until Gitxaała Nation filed its 2021 lawsuit.
“Gitxaała was able to negotiate protection from mining activities and mineral claims in their territory, but there are nations all around the province right now who are experiencing extensive mineral claim staking in their territories, which is really unacceptable,” Clogg says.
She adds that if BC succeeds in convincing the court that its mineral claim staking system’s consistency with the UN declaration is not enforceable in court, then “no future nation will be able to bring a similar claim.”
The nations, intervenors, and BC presented their arguments before the BC Court of Appeal on Monday through Wednesday.
A spokesperson for the BC Attorney General declined to comment on the case.
