Report finds that BC mining laws contradict commitment to UNDRIP

Wed, May 11, 2022,

(ANNews) – British Columbia’s mining laws are out of step with the United Nations Declaration on the Rights of Indigenous Peoples, which the provincial government adopted in late-2019, according to the First Nations Energy and Mining Council.

The council is calling for Indigenous peoples to take back sovereignty over their lands through their own laws and traditions while the government revamps its laws, The Tyee reports.

The council’s most recent report, “Indigenous Sovereignty: Implementing Consent for Mining on Indigenous Lands,” provides 25 recommendations for how Indigenous communities can take their power back, which are broken down into five stages — claim-staking, planning and environmental assessment, leasing and permitting, compliance and enforcement, and mine closure and reclamation.

“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, the Union of BC Indian Chiefs president.

“We thought the recognition of the sovereignty and self-determination of Indigenous nations was finally being actioned and that First Nations’ consent would be the basis of all prospecting and mining on our lands, and we could ensure the protection of our lands and water,” he continued. “But, more than two years on, no action has been taken to align provincial laws.”

The First Nations Energy and Mining Council is a non-profit under the aegis of the First Nations Leadership Council of BC, which is composed of the Union of BC Indian Chiefs, the BC Assembly of First Nations and the First Nations Summit.

Allen Edzerza, an Elder who was the project lead for the report and has worked in mining since the ‘70s, was recently tasked by the Tahltan Central Government, of which he is a band member, with handling all negotiations concerning salmon.

Salmon is intimately connected to mining due to the impact of mining on the health of waterways.

“The report was intended to say to First Nations, we have never surrendered or ceded or released our title and rights,” Edzerza told The Tyee. “We are sovereign nations, and the idea of free, prior and informed consent is merely a tool for us to exercise our jurisdiction and authority as a sovereign nation.”

Seeking out free, prior and informed consent — a key requirement for extraction projects under UNDRIP — can also benefit mining companies, since they would no longer have to worry about costly legal challenges to their projects, he added.

The report identified two B.C. laws that are out of step with the Declaration of the Rights of Indigenous Peoples Act, the legislation the B.C. government put forward to bring its laws into line with UNDRIP — the Mineral Tenure Act and the Mines Act.

These laws are a relic of the colonial-era “free entry system” that has been the status quo for 150 years based on the doctrine that the land didn’t belong to anyone until settlers arrived.

“This legal framework is outdated, colonial and not aligned with Indigenous human rights,” the report noted.

A spokesperson for the B.C. Ministry of Energy, Mines and Low Carbon Innovation told The Tyee that the government’s recently-released Declaration Action Plan will address the gaps in the Mineral Tenure Act.

“Any steps to modernize the MTA will be undertaken with Nations and First Nations leadership organizations and industry as well as engagement with other stakeholders and the public,” the spokesperson said.

The Gitxaala Nation has a challenge underway in the B.C. Supreme Court against the province’s free entry system, challenging seven mineral claims made on their traditional lands between 2018 and 2020.

“Gitxaała’s system of governance and ayaawx (Gitxaała law) has enabled us to care for healthy territories for thousands of years. Yet, under the Mineral Tenure Act, the B.C. government gives away rights to our lands through an automatic online system, as if Gitxaała does not exist at all,” Gitxaala Elected Chief Coun. Linda Innes told The Tyee.

Environmental concerns are a focal point in traditional Indigenous law, Edzerza said.

“In our language we say that we are interconnected,” he said. “You can’t separate us from our lands. We are part of the environment there. It’s based on the belief that all things have a spirit and are interconnected.

“It’s a sacred responsibility that’s been handed down to our people to protect those lands and waters for all living things.”

Jeremy Appel, Local Journalism Initiative Reporter, Alberta Native News