The BC Supreme Court ruled Tuesday that the province’s mining permit system is unconstitutional.
The state’s current system at issue automatically issues mineral claims to industry applicants who apply through the government’s website.
Tuesday’s ruling found the process violated First Nations rights.
It ordered BC to replace the system with one that ensures input and consultation with Indigenous communities on whose territories mining permits are issued.
“Creating an online system to automatically register mineral claims in their areas without setting up a consultation system breaches the Crown’s obligations,” Justice Alan Ross wrote in his 148-page ruling.
“The fault of the system lies not in meeting the demands of individual minerals, but in higher-level decision-making that relates to: [Chief Gold Commissioner]The discretion to consult with First Nations.’
Ross gave the government a year and a half to replace the current system, but said his decision does not affect any currently approved mines.
The two communities behind the case, the Gitxaała Nation and the Ehattesaht First Nation, called the ruling a massive victory for the province’s indigenous people, forcing the government to consult with them as it creates a new system.
“We knew that in B.C. have a duty to consult … with First Nations before making mineral claims on our territories and this is in breach of that duty,” Gitkhaala general counsel Linda Innes said in a statement.
“The provincial government must now act quickly to end its unfair practice of selling our rights without our consultation or consent.”
Innes challenged the fact that the court revoked existing mining permits that Gitxaała contested on his land, which he said “leaves our territory open” to continued exploitation without his nation’s consent.
The Gitxaała area is located south of Prince Rupert, BC. on the north coast.
“Modernization” was welcomed
Mining representatives said they welcomed the decision, particularly the 18-month extension of its existing system and existing permits, even though the process is considered unconstitutional.
The Mineral Exploration Association said at least a year and a half provides “clarity and predictability” for the industry, while allowing for a long-term “modernization” of the state’s mineral lease law.
“Our goal is to ensure that the mineral claims process remains competitive and efficient … while respecting the rights of indigenous peoples,” association president Kirit Jutla said.
“We know that there is an opportunity for a more inclusive process.”
Gitxaała’s lawyer called the verdict a significant victory.
“First Nations consent must be in B.C. the foundation of the modern mining regime,” Jessica Clogue, executive director of West Coast Environmental Law, told CBC News.
“It shouldn’t be just symbolic”
But some of the legal community reacted with alarm to one aspect of the court’s decision.
Justice Ross raised questions about the strength of a key part of the BC NDP government’s reconciliation promises.
The state passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA) in late 2019, which its website states “establishes the UN Declaration on the Rights of Indigenous Peoples as the state’s framework for reconciliation.”
DRIPA, according to the government, “mands the government to bring state laws into line with the UN Declaration.”
At the time of publication, BC’s Ministry of Indigenous Relations and Reconciliation promoted the bill as a first in Canada.
“Today we have made history,” said the statement posted on the website of the ministry at that time. “British Columbia is the first province in Canada to legislate the human rights of Indigenous peoples.”
But in his ruling, Justice Ross said he did not find the BC legislation effectively enshrined UNDRIP in the province’s legal system, noting that he could only rely on it as an “interpretive aid” in his judgment.
“I find that DRIPA … does not incorporate UNDRIP into BC domestic law,” Ross wrote, adding that it “does not create equitable rights.”
That has alarmed the state’s Human Rights Commissioner, Kasari Govander, who has intervened in the two First Nations’ court cases.
He said he was “disappointed” to see that the B.C. The Declaration on the Rights of Indigenous Peoples Act was rejected.
“Today’s decision shows that the UN Declaration on the Rights of Indigenous Peoples does not yet have the force of law in BC,” he warned. “The act of declaration should not be merely symbolic.”
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