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First Nations staking claim over mining in B.C.

Mining, minerals acts need overhaul as per UNDRIP: First Nations Mining Council
Banks Island mine, shut down for environmental violations, was approved without Gitxaala consent or notification, report says.

When the Association of Mineral Exploration (AME) annual Roundup conference convenes next week, a good deal of oxygen may get be taken up by what First Nations in B.C. are demanding: a complete overhaul of mining and minerals acts to give First Nations more regulatory control over mining.

The First Nations Energy and Mining Council (FNEMC), backed by the Union of BC Indian Chiefs and BC Assembly of First Nations, issued a report Thursday with 25 recommendations that, if implemented, would require a complete overhaul of B.C. Mines and Mineral Tenure Act to conform to the United Nations Declaration on the Rights of Indigenous People (UNDRIP) and B.C.’s own enabling act, the Declaration on the Rights of Indigenous Peoples Act (DRIPA).

In passing DRIPA, the B.C. government obligated itself to change B.C. land use laws to harmonize them with DRIPA.

“At the time of its passing, we welcomed the Declaration of the Rights of Indigenous Peoples Act and praised the provincial government for its bold leadership,” said Grand Chief Stewart Phillip, president of Union of BC Indian Chiefs

“But, more than two years on, no action has been taken to align provincial laws. Exploration and mining activities persist as if the Declaration Act does not exist. Once again, this forces First Nation communities to continue to rely on lengthy and costly legal processes to stop or restrict unsanctioned mining operations in our territories, threatening our sacred lands and waters.” 

“Many First Nations in B.C. are not opposed to mining,” Terry Teegee, chief of the BC Assembly of First Nations, said in a news release.“We recognize the potential for economic benefits in jobs and revenue for our own people and the province as a whole.

“However, we are opposed to prospecting and mining without our free, prior and informed consent. Unfortunately, this remains the current situation in BC.”

The main statutes governing mineral exploration and mining in B.C. are the Mineral Tenure Act and Mines Act.

“Both are outdated legal frameworks that do not recognize Indigenous self-determination or the constitutional protections for Aboriginal peoples set out in section 35 of the Constitution Act, 1982,” the report states.

“Neither law acknowledges that mining in B.C. occurs largely on unceded lands and territories. Both laws are long overdue for reform, and are even more so now as they are inconsistent with the UN Declaration.”

One glaring example of how current laws fail the “free, prior and informed consent” test that is central to UNDRIP is the Minerals Tenure Act. It allows anyone with a credit card and a computer to go online and stake a mineral claim without informing the First Nations in whose territory the claims are filed.

“Of particular concern to Indigenous peoples are the provisions that allow for mineral and placer claims to be registered through the province’s online mineral title registry with no notification to, or involvement of, affected Indigenous peoples,” the report states.

It cites the Banks Island mine – shut down for violations of environmental regulations – as an example of a claim and lease that was approved without First Nation consent. The mine was approved without an environmental assessment because it was small enough to fall below the threshold needed to trigger and environmental review.

The report says the B.C. government allowed the mine to operate in Gitxaala territory “without the nation’s consent, consultation, or even notification.”

First Nations have successfully rejected mines in B.C. – notably the Prosperity Mine – which was rejected by the federal government. Opposition by the Tsilhqot’in First Nation very likely was a factor in that decision, as senior governments were well aware of how strong a case the Tsilhqot’in had in asserting aboriginal title and rights – which were confirmed by the Supreme Court of Canada in the 2014 William case.

But asserting aboriginal rights to reject mining activities can be a long and costly affair.

“First Nations continue to rely on costly legal processes to protect their rights and address non-sanctioned mining operations in their territories, contrary to the Declaration Act and the Province’s commitments to First Nations,” the report states.

It can be costly for mineral exploration companies too. Just last week, Carlyle Commodities (CSE:CCC, OTC:DLRYF) filed a petition in the BC Supreme Court against the ministry of Energy, Mines and Petroleum Resources for refusing to issue a mineral exploration permit for its Newton project.

The reluctance of the ministry to issue a permit appears to result from the legal uncertainty between existing B.C. laws and the Strategic Engagement Agreement it has with the Tsilhqot'in.

The company asserts the agreement does not prevent the ministry from issuing a permit without Tsilhqot'in consent, but the province appears to be operating as though it does.

The FNEMC report recommends changing the Minerals Tenure Act to grant indigenous governing bodies (IGB) “Indigenous equivalent” powers to that of the Chief Gold Commissioner. These IGBs would have the power to issue or cancel mineral claims.

“IGBs could establish their own system for claim staking, which will be based on their own governance and values.”

When a prospector thinks a claim is worth developing, it can be converted to a lease. Mining leases too should only be granted with IGB consent, the report recommends. Those leases should prioritize employment for indigenous people, and IGBs should be able to collect “rents” and taxes, the report recommends.

As for operating mines, the report recommends that IGBs should have Indigenous-led compliance and enforcement powers. It also recommends that all regional land use planning should include Indigenous nations and communities as title holders.

“This should occur regardless of whether title has been proven or recognized in Treaty,” the report states.

Typically, subsurface rights to things like minerals and oil and gas are not treated the same as land rights. Claims to subsurface minerals can be granted without requiring the claims holder to own the land.

In the Yukon, however, modern land-claims agreements can include ownership of both land and subsurface resources.

"On certain lands, Yukon must obtain the consent of the Indigenous nation before granting any interest in land," the report notes.

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