PUBLIC NOTICE:
Attention All Free Miners, Mining Associations, and relevant Provincial, Federal, and Regional Government Representatives:
1. Under Gitanyow Ayookxw (laws), Gitanyow requires an Access Agreement between a mineral exploration proponent and the relevant Gitanyow Wilp in order to allow mineral exploration activities in Gitanyow Lax’yip.
2. Gitanyow does not, and has never, recognized the validity of provincial mineral tenures and mineral exploration approvals in the Lax’yip that breach the Ayookxw and Gitanyow’s constitutionally-protected rights.
3. In light of the provincial government’s failure to enact interim protection measures pending a negotiated resolution regarding mineral tenure and mineral exploration decision-making, Gitanyow hereby provides notice that it is implementing the following Interim Measures pursuant to the Ayookxw:
a. Effective August 14, 2024, all those without an active Access Agreement or other arrangement explicitly indicating consent of the relevant Wilp are required to cease and desist all mineral exploration and development operations within the Lax’yip and remove any related equipment and personnel.
b. Free Miners must enter into an Access Agreement prior to registering new provincial mineral claims in the Lax’yip. Failure to do so will be considered by the Wilp as a factor in determining whether to enter into an Access Agreement.
4. These Interim Measures remain in effect until the Gitanyow Hereditary Chiefs provide notice that one of the following has occurred:
a. the provincial government enacts satisfactory interim protection measures regarding mineral tenures and exploration in the Lax’yip;
b. the Gitanyow Hereditary Chiefs and the provincial government agree upon and implement a reformed mineral tenure regime in the Lax’yip; or
c. the Gitanyow Hereditary Chiefs replace these Interim Measures with a Gitanyow Mineral Layer in the Gitanyow Lax’yip Land Use Plan and/or a related Consent-Based Process for mineral tenures and exploration in the Lax’yip.
BACKGROUNDER
LEGAL FOUNDATION
The Gitanyow Hereditary Chiefs require Access Agreements and enact these Interim Measures upon the following legal foundation:
1. The Gitanyow Ayookxw (laws) as outlined in the Gitanyow Constitution (2009) and in other land and resource Ayookxw including the Gitanyow Lax’yip Land Use Plan, the Meziadin Indigenous Protected Area, the Aks Ayookxw, and the Wilp Sustainability Assessment Process.
2. The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), particularly Articles 18, 25, 26-1, 26-3, 28, 29, 32-
3. The Declaration on the Rights of Indigenous Peoples Act (“DRIPA”), Section3, which requires that BC align its laws with UNDRIP, as well as the province’s outstanding commitment to “modernize” the Mineral Tenure Act under section 2.14 of the DRIPA Action Plan.
4. Gitanyow Recognition & Reconciliation Agreement (2012, 2016, 2021, 2024): The RRA includes mutual legal commitments regarding the Gitanyow Lax’yip Land Use Plan, strength of claim, shared decision-making, and strategic direction for land and resource decision making in the Lax’yip. There is an on-going unresolved Dispute Resolution under the RRA on mineral tenures being established without Gitanyow consent, including a call for Mineral Tenure Act reform through government-to-government engagement.
5. Gitanyow Incremental Reconciliation Pathway Agreement:
a. Section 4.1. affirms BC’s “commitment to recognizing Gitanyow title and rights, including the inherent self-government rights.”
b. Schedule 3 Natural Resources Co-Management Milestone 2 commits to Gitanyow Lax’yip Land Use Plan Updates including LUP Update Priorities ‘mining’. Milestone 4 commits to Collaboration on Land and Resource Management and co-developed pilot for consensus-based (consent required) decision-making models.
6. Gitxaala v. BC (Chief Gold Commissioner): Summary of Findings (para14) states that “a duty to consult is triggered by the current system of issuance of mineral claims because it causes adverse impacts upon 1. Areas of significant cultural and spiritual importance to the petitioners; and 2. The rights of the petitioners to own, and achieve the financial benefit from, the minerals within their asserted traditional territories…this duty to consult flows from s.35 of the Constitution and the application of the Haida Test.
7. Gitanyow and BC Ministry of Energy, Mines, and Low Carbon Innovation Government-to-Government Process for Mineral Tenure Reform, which includes as an objective: “Informed by the Gitanyow Lax’yip Land Use Plan, work collaboratively to align the Mineral Tenure Act with the United Nations Declarations on the Rights of Indigenous Peoples (“UNDRIP”) to provide a consensus-based process for how and where mineral tenures are granted within the Gitanyow Lax’yip, and the shared regulatory regime that will govern mineral exploration in a Gitanyow title recognition environment in a manner that that aligns with Article 26-1 and 26-3 of the UNDRIP.”
ACCESS AGREEMENTS
Access Agreements are a mechanism that confirms free, prior and informed consent of affected Wilp for mineral exploration activities. The Gitanyow Hereditary Chiefs Office is prepared to facilitate discussions between any mineral exploration company and the affected Wilp regarding an Access Agreement. Where consent is provided, Access Agreements are readily available to those who seek to operate in the Gitanyow Lax’yip, in areas that the affected Wilp have deemed appropriate. Mineral exploration is prohibited in the Wilp Wii Litsxw Meziadin Indigenous Protected Area according to its Management Plan, thus Access Agreements are not available in that area.
Some exploration companies have already entered into such agreements, with no negative impact to their operations or financial viability.
To obtain more information about Access Agreements, companies can contact Tara Marsden/Naxginkw at [email protected]
GITANYOW EFFORTS TO SECURE PROVINCIAL INTERIM MEASURES
The Gitanyow Huwilp exercise governance throughout the Lax’yip pursuant to the Ayookxw. Gitanyow also holds constitutionally-protected Aboriginal title to its Lax’yip, for which Gitanyow is actively pursuing judicial recognition in the ongoing case of Malii v. British Columbia, currently before the BC Supreme Court. The provincial government’s ongoing practice of granting mineral tenures and mineral exploration approvals without Gitanyow consent breaches the Ayookxw and infringes upon Gitanyow’s rights. The BC Supreme Court recently affirmed in Gitxaała v. British Columbia (Chief Gold Commissioner) that the province’s current mineral tenure regime also breaches the province’s constitutional duty to consult and accommodate Indigenous peoples.
Gitanyow has persistently sought a constructive, negotiated resolution to this issue with the provincial government, including interim provincial measures to prevent ongoing breaches of the Ayookxw and Gitanyow rights during negotiations. Since 2017, Gitanyow have sought a provincial No Registration Reserve to prevent new mineral claims in the Meziadin area now established as the Meziadin Indigenous Protected Area. Despite at least four years of negotiation, including extensive commitment of Gitanyow human capacity, financial resources and providing unchallenged scientific evidence of the ecological value of this salmon spawning habitat, the provincial government failed to achieve their March 9, 2023 Cabinet commitment1 to provide such provincial protection before the 2024 election.
Gitanyow was informed by provincial Ministers of Energy, Mines, and Low Carbon Innovation and Water, Land and Resource Stewardship on July 4, 2024, that the No Registration Reserve (as an interim measure to long-term protection of Meziadin) would not be proceeding before the provincial election as previously committed. They further stated that any commitment to pursue such protection in the next provincial government cannot be guaranteed.
Through the Government-to-Government Process for Mineral Tenure Act reform currently underway, Gitanyow has also requested interim measures to halt the staking of new claims, and to vacate tenures in sensitive areas while the reform process continues. Gitanyow has referred to the precedent of the petitioners in the Gitxaala court case referenced above, the Gitxaala and Ehattesaht, securing interim measures that include orders to “pause the limited current mining activities as well as the issuance of new permits in Gitxaała and Ehattesaht territories and prevent the registration of new mineral claims without agreement by the respective Nations.” (Gitanyow was granted Intervenor status in the case as the issue of mineral tenures also impacts Gitanyow and Gitanyow’s experience brought a unique perspective for the court to consider).
The provincial government has rejected this request and recognizes that “the parties may have different perspectives regarding appropriate or available measures, including interim measures while G2G discussions are ongoing…” 2
Through multiple avenues and over many years, Gitanyow has sought a negotiated solution that is both legally sound and reasonable, and ensures greater certainty for the mining industry, the provincial government, and Gitanyow. Gitanyow’s requests have been repeatedly rejected in favor of political expedience, and in the case of the Meziadin, in favor of political advantage for the upcoming provincial election. In the words of Minister Josie Osborne “we are really concerned about the significant political debate around the Haida Act and Land Act, and the tone of the conversation that is taking place in BC, and the risk is really high leading into the election.” 3
While Gitanyow continues to invite a collaborative resolution with BC on this issue, the province’s failure to implement any protective measures whatsoever after more than seven years of Gitanyow’s efforts has made it apparent that it is not viable to continue to wait for the provincial government to deliver on its commitments and legal obligations to Gitanyow. Gitanyow is taking action to uphold its governance responsibilities under the Ayookxw through the Interim Measures.
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1 Ministry of Water, Land and Resource Stewardship. Powerpoint presentation. March 9, 2023.
“Our Shared Salmon Conservation Goals: Clarifying the Path Forward”
2 Government-to-Government Process document, Version 3.
3 Meeting held virtually June 20, 2024 with Gitanyow and BC Ministers.
