After a landmark B.C. Court of Appeal decision last December that made the UN Declaration on the Rights of Indigenous Peoples enforceable in provincial law, First Nations have launched suits using the ruling to argue against government decisions in mining, forestry and energy.
Lower Similkameen Indian Band Files Petition
In a petition filed last month, the Lower Similkameen Indian Band is seeking to quash an expansion of Hudbay Mineral's Copper Mountain Mine in the southern Interior, arguing a permit was granted without adequate consultation. The First Nation says the decision must be set aside and a declaration issued to ensure its constitutional rights are protected pursuant to UNDRIP and B.C.'s Declaration of the Rights of Indigenous Peoples Act.
In outlining the need for deeper consultation, the First Nation cites several legal precedents including a B.C. Appeal Court decision where the Gitxaala First Nation won a ruling that found the province's open-entry mineral claims system was inconsistent with the B.C. government's implementation of UNDRIP.
"The Declaration Act constitutes a solemn promise by the provincial Crown to act as though the legal rights, obligations, principles, minimum standards and goals expressed in UNDRIP, as they relate to Indigenous Peoples, apply to British Columbia law, including the common law. This must inform the duty to consult," says the Lower Similkameen's petition, in reference to the Gitxaala decision.
Province's Response and Premier's Shift
The province hasn't responded in court to the suit. The Mining Ministry referred questions about the case to the B.C. attorney general's office, which said it couldn't comment on the case while it was before the courts. B.C. Premier David Eby, who had said initially there would need to be amendments to provincial laws because of the Gitxaala decision, has since stepped back from that position and even dropped the idea of suspending key sections of the Act for three years while exploring changes.
Instead, the premier has agreed to leave the province's Declaration Act as is, with the province and Indigenous leaders agreeing to "work together on a path forward to discuss and consider the government's stated concerns."
Industry Concerns
Hudbay Minerals, which owns the Copper Mountain Mine, didn't immediately respond to questions on the suit filed by the Lower Similkameen Indian Band. Michael Goehring, president and CEO of the Mining Association of B.C., said economic reconciliation with First Nations is a core value of the mining sector and partnerships have provided benefits, but added they are concerned about uncertainty following the Gixaala decision. He said it was incumbent on the B.C. government to restore certainty and clarity to support investment and mine development.
"This unfortunately comes at a time when mining and critical minerals development represent a once-in-a-lifetime economic development opportunity for all British Columbians," Goehring said.
