First Nations Demand Mining Reform in Wake of Harvard Law Report

First Nations Demand Mining Reform in Wake of Harvard Law Report
Independent human rights study details unjust B.C and federal mining laws
Monday June 7, 2010:

Press statement
Takla Lake Traditional Territory/Takla Landing, B.C – The BC and federal governments must heed the recommendations contained in a just-released Harvard Law School report on the impacts of an “unjust” government mining regime on Takla Lake and First Nations across BC, Chief Dolly Abraham of the Takla Lake First Nation said today.

The 200-page study was initiated and funded entirely by Harvard’s International Human Rights Clinic and is its first involving indigenous peoples in Canada. It details how mining laws are stacked against Takla Lake and other First Nations in BC, describing them as in contravention of international and constitutional law, overly favourable to industry, lacking in fair compensation, and in need of “urgent law reform.”

“I strongly support this damning assessment of the provincial mining system because I know firsthand how BC law and policy are used to avoid meaningfully addressing our Aboriginal rights, title, and community concerns,” said Chief Abraham.

“For example, the provincial government's lack of action on historic and abandoned mining sites, such as the contaminated Bralorne mercury mine and the environmental impacts of numerous past exploration sites, have resulted in roads and contaminated waste strewn across our traditional territory,” she said. "BC promised to help us clean up the legacy contamination from the mining industry, and yet no progress has been made. At the same time, BC is constantly approving exploration projects in our territory while paying little attention to our concerns”.

“When these historic impacts are combined with today’s intense exploration, you start to see large scale damages to our land and we are still not consulted or compensated for this,” said Chief Abraham, who noted Takla has still not been compensated by the province for the massive Kemess South open-pit mine, which has generated huge revenues for the BC government over the years.

“Premier Campbell and the province must heed the call for reform and sit down with First Nations to get it done, and the federal government must start living up to its international commitments and its own laws to ensure our rights are protected,” said Chief Abraham, who is a member of BC’s First Nations Women Advocating Responsible Mining (FNWARM).

FNWARM Chairperson Anne Marie Sam said: “We commend Takla Lake First Nation for cooperating with this detailed study and Harvard for devoting its resources to this analysis of the human rights issues that our members and other First Nations across BC continue to experience.

“This report exposes the rights violations and other infringements we experience as a result of unjust and outdated pro-industry BC mining laws, and the failure of the federal government to meet its duties to us as defined in its international agreements and the Canadian constitution,” said Ms. Sam, a band councilor with the Nak’azdli First Nation, which is challenging the Mt. Milligan mine in its traditional territory because of the lack of meaningful consultation and environmental concerns.

"The provincial government has to reform its impoverished attitude toward First Nations' concerns with mining in BC, starting with the free entry system, which must be abolished, and online mineral staking,” said Ms. Sam. “The environmental review process is another major issue, and must be revised to fully address Aboriginal interests through joint decision making.”

The Harvard study found that mining “frequently prevents First Nations from using their traditional lands for subsistence and cultural practices and causes significant environmental harm,” and that First Nations generally “bear an unfair burden at every point in the mining process,” from registration of claims to exploration, production, and abandonment of closed sites.

It also found that current safeguards for First Nations and the environment in fact “favor the industry they are designed to regulate.” For example, the study highlights how the online mineral staking system, similar to British Columbia’s free entry system, gives miners legal access to First Nations lands without any specific requirement to consult or accommodate them.

The report says that despite the unfair burden that mining places upon First Nations they “do not always reap economic benefits” from the sector. It also states the province’s mining regime fails to live up to international laws and treaties that Canada has signed or domestic law, thereby leaving First Nations without the proper protection that these laws are intended to provide.

The report, “Bearing the Burden: The Effects of Mining on First Nations in British Columbia,” was authored by Bonnie Docherty, an expert on international human rights law and a lecturer with Harvard Law School’s International Human Rights Clinic, and a team of her students.

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View the report at: http://law.harvard.edu/programs/hrp/BearingTheBurden.pdf. Or go to www.fnwarm.ca for more information and background.

Media Inquiries/Interviews:
Chief Dolly Abraham: Contact Dave Radies, Takla Lake Mining Coordinator at 604-921-2024 or 250-961-1614
Anne Marie Sam, FNWARM Chair: 250-996-7171.
Author Bonnie Docherty: Contact Cara Solomon at 617-495-9214 / csolomon@law.harvard.edu
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BEARING THE BURDENTHE EFFECTS OF MINING ON FIRST NATIONS IN BRITISH COLUMBIA

International Human Rights Program, Harvard Law School
SUMMARY
Rich in mineral resources, the traditional lands of First Nations in British Columbia(B.C.) have been targets of Canada’s active mining industry. Mining provides important revenuefor the province, so many people welcome it. It also, however, frequently interferes with FirstNations’ use of their traditional lands and significantly harms the environment to which theirculture is inextricably linked. B.C. mining laws provide some safeguards for First Nations and the environment, but they favor the industry they are intended to regulate and do not adequately institutionalize the special protections First Nations are entitled to under international anddomestic law. While some First Nations have benefited from mining within their boundaries, ingeneral, First Nations bear an unfair burden at every point in the mining process,1from theregistration of claims to exploration, production, and abandonment of closed sites. Urgent lawreform is needed to shift at least some of that burden onto government and industry. Current lawpresumes that mining is an acceptable use of a piece of land, but the presumption should instead be that aboriginal rights require heightened scrutiny of mining activities. Reform should ensure1The Mineral Tenure Act (MTA) defines “mining activity” as “any activity related to” the search for minerals,“exploration and development of a mineral,” or “the production of a mineral,” “and includes the reclamation of apreviously mined area and the monitoring and long term protection, control and treatment of a previously minedarea.” Mineral Tenure Act, R.S.B.C. ch. 292, part 1 (1) (1996) (Can.), available athttp://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96292_01. This report will use the MTA’sdefinition and will specify when referring to a specific stage of the process.
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more First Nations’ involvement in decision-making, increase environmental and culturalprotection, and balance the potential benefits among all key stakeholders.The experiences of Takla Lake First Nation, which is based in remote northern British Columbia, illustrate that the province’s mining laws are a problem in practice as well as on paper. While Takla has good relations with some mining companies, it has generally been ambivalent or even hostile to new projects. This attitude stems largely from the fact thatcommunity members feel excluded from the process that reviews proposals and inundated with mining claims and projects on their traditional territory. In addition, Takla—home to exploration sites, a major open-pit mine, and several abandoned operations—has seen the range of harmscaused by different stages of mining. Members of Takla widely report destruction of habitat, adecrease in wildlife, and a fear of health problems from contaminants. Because of Takla’s closeties to the land, these effects cause cultural as well as environmental injury. Finally, even thosemembers who are willing to accept mining say that they have not received the benefits that aresupposed to accrue from the industry—in particular, revenue sharing and employmentopportunities. Takla’s story—its experience with disenfranchisement and harms accompanied by few benefits—illustrates that the current legal regime needs reform to better preserve FirstNations’ lands and culture.2The situation is particularly troublesome given that international and Canadian lawrequire special protections for First Nations. Canada is party to international human rights and environmental treaties that recognize the unique connection between indigenous peoples and the2The unfair burden that First Nations in British Columbia bear could be described as an environmental injustice. Inother words, mining in the province causes a disproportionate negative effect on a disadvantaged group and givesdisproportionate benefits to those outside that group. While this report will present its arguments in terms ofaboriginal rights rather than environmental justice, its call for burden and benefit sharing is consistent with bothframeworks.
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First Nations have the right to self-determination, which includes the right to decide howtheir traditional lands and resources are used. They also have a right to practice their culture,which requires the use of traditional lands. Treaty law not only enumerates these rights but also obligates Canada to ensure First Nations are able to enjoy them. In addition, Canada has a dutyunder international environmental law to encourage sustainable development and protect thequality of its environment. The Canadian Constitution, meanwhile, establishes aboriginal rightsat the domestic level, and a growing body of Canadian case law, notably the 2004 Haida Nation v. British Columbia decision, has strengthened the protection of First Nations by mandating consultation with and accommodation of the communities. Consultation and accommodation by the government mandate “good faith efforts to understand each other’s concerns and move toaddress them.”3International and constitutional standards thus provide a framework for the protection ofFirst Nations that calls for heightened scrutiny of projects affecting these indigenous peoples and the incorporation of aboriginal rights into domestic mining law. The standards are designed to give First Nations a voice in decision-making through consultation and an assurance that theenvironment with which they are linked is healthy. B.C. mining laws on their face and in theirimplementation, however, fail to guarantee either.Harvard Law School’s International Human Rights Clinic (IHRC) has based this reporton a field mission to Takla’s traditional territory and surrounding areas in September 2009 and follow-up research through May 2010.4The IHRC team conducted at least fifty interviews with 3Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, ¶ 49 (Can.).4IHRC has done extensive work on human rights and the environment issues, including on mining in Africa, theAmericas, and Asia. It decided to investigate the situation in British Columbia after learning about the controversyover free entry although the final report covers much more. IHRC chose to focus its field research on Takla Lake
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4representatives of First Nations (especially Takla), the B.C. government, and the mining industry.5During its field mission, the team made personal observations of the environmentaldamage that mining, including exploration, has caused in Takla’s traditional territory.6It hasalso drawn on a range of legal sources for an extensive analysis of international and domesticaboriginal rights law and B.C.’s mining law.7After making recommendations to government, industry, and First Nations, this reportexpands on the issues laid out in the summary in greater depth. It opens with a background chapter about Takla and an overview of international and domestic aboriginal rights law. Thereport then analyzes the problems mining raise for First Nations in detail. It provides an extensive legal analysis of the existing mining regime. It also documents the situation of Takla,describing the band’s experiences with and opinions about lack of consultation, harms of mining,and lack of benefits. It concludes that structural, procedural, and substantive legal reforms areneeded firmly to establish the heightened protections to which Takla is legally entitled and betterto balance the burdens and benefits of mining.First Nation because the mineral-rich nature of its traditional territory has led to a particular vulnerability to andextensive experience with mining.5The IHRC team conducted interviews with thirty-one members of Takla, including chief and council, keyohholders, and individuals who had worked in mining. It spoke with representatives of other First Nations and Takla’sformer and present mining coordinators and lawyer. It also interviewed officials from the Ministry of Energy,Mining and Petroleum Resources, the Ministry of Environment’s Environmental Assessment Office, and theMinistry of Agriculture and Land’s Crown Lands Restoration Branch. Finally, it had interviews with representativesof industry, including leaders of two companies that operate within Takla’s traditional territory and two provincialmining associations. Other companies provided additional information in written form.6During its field mission, the IHRC team visited an abandoned mine (Bralorne-Takla), a current exploration project(Kwanika), and sites near proposed operations (Aiken Lake and Bear Lake).7This report does not address mining regulations in other Canadian provinces, nor does it address important issuesregarding First Nations relations with other industries, such as logging or fishing, or with the B.C. governmentgenerally.
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5Background on Takla Lake First NationThe Takla Lake First Nation, which consists of approximately 1000 members, has atraditional territory—the land it has historically used and occupied—of approximately 27,250square kilometers of mineral- and timber-rich country. As for most First Nations, the land isessential to the identity and survival of Takla. Many members still depend on traditionalsubsistence activities, such as hunting and gathering, for food and medicine. Subsistenceactivities also serve important social and cultural functions. Passing on this way of life linksgenerations, and Takla is currently engaged in a conscious effort to revive and maintain itsheritage. A spiritual connection to the land makes them respect it and teaches them not disturb itunless necessary.Takla’s traditional governance structure reflects this close relationship to the land.Known as the potlatch system, it is centered around keyohs, families’ traditional tracts of land. Afamily leader represents the keyoh at community gatherings and is commonly described as“speaking for the land.” The names these keyoh holders inherit often indicate theirresponsibilities to the environment. The name “wise fish,” for example, belongs to a man who must protect the water so that fish can safely spawn.The Canadian government, however, banned the potlatch system for many years and created an alternative governance structure—an elected chief and four council members—thatstill survives. The existence of two types of spokespeople sometimes creates tensions becausegovernment officials communicate primarily with chief and council as representatives of thewhole community while ignoring keyoh holders who “speak for the land.”Use of local First Nations’ resources began with the fur trade and then turned to logging.The latter in particular changed the environment and Takla’s relationship to it. For example, it
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6made hunting more difficult because of a decline in caribou. As logging has started to decline,mining has risen to take its place as the key extraction industry in northern British Columbia and on Takla’s traditional territory.As mentioned above, Takla has experienced mining operations at all stages in theprocess. Claims, which give holders exclusive rights to explore an area for minerals, blanket themajority of its territory. Their prevalence is thanks in large part to free entry, a regime thatallows almost anyone to register a claim without consulting landholders. Companies, such asAlpha Gold, CJL Enterprises, and Serengeti Resources, have turned many of those claims into exploration sites, where they test the sub-surface soil and rock for the presence of minerals.Representing the next stage of the process are actively producing mines, i.e., those that extractminerals from the ground for sale. The most notable in this region is Northgate’s Kemess South Mine, a large open-pit operation in the north of Takla’s traditional territory. Finally, whileinactive, abandoned mines, including Bralorne-Takla and Ogden Mountain, pose lingering risksof contamination and no longer have identifiable corporate owners to hold responsible for theircleanup.The Legal Regime Governing MiningThe legal regime that governs this activity on Takla’s territory consists of a complexcollection of laws that can be difficult to understand and navigate. Provincial land-use planning,in the form of Land and Resource Management Plans (LRMPs), has determined what land isopen to mining, but the government and First Nations advocates disagree about the effectivenessof the consultation efforts during that process.
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7The rest of the laws are administered by multiple B.C. agencies, particularly the Ministryof Mines, Energy, and Petroleum Resources (MEMPR), the Ministry of Environment, and theMinistry of Agriculture and Lands. MEMPR’s principle of free entry permits claim registration,or staking, with no consultation. Its recent online version called Mineral Titles Online (MTO)allows miners from anywhere in the world to register at the click of a button; they must pay onlya small fee and do not have to speak with traditional landholders. Companies that want to pursueexploration must submit a Notice of Work (NOW), which the government forwards to FirstNations; however, the process usually gives First Nations only thirty days to respond with any concerns. The tight deadline combined with the shortage of information to which First Nationshave access makes it unrealistic to prepare an adequate response. In addition, the NOW processprovides only limited environmental protection and takes place after some harm has occurred.The Ministry of Environment’s Environmental Assessment Office conducts a morerigorous review, in the form of environmental assessment, when a company seeks to move fromexploration to development (preparation for production) and production itself. Even here,however, First Nations argue that, in implementing the environmental assessment, thegovernment and mining companies do not take their rights and environmental concerns fully into account. Much of the design of the process is left to the discretion of a government official.Furthermore, First Nations again receive incomplete information and have limited resources to supplement it when they want to build a case against a particular project.Finally, the government bears legal responsibility for abandoned mines that predate a1969 remediation bond requirement and have no clear private owner. The Ministry ofAgriculture and Lands’ Crown Lands Restoration Branch, formed only in 2003, oversees their
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8remediation. Its limited resources combined with extensive studies can slow cleanup of sites thatpotentially contaminate First Nations’ traditional territories.While international and domestic aboriginal rights law mandate added protections forFirst Nations and require that projects are subjected to higher scrutiny for possible adverseeffects, the B.C. legal regime and its implementation regularly fall short of that standard. They favor industry, leave great discretion to government, and deny First Nations an effective meansto have a say in what happens to their land.Takla’s ExperienceTakla’s experiences with mining exemplify the unjust situation British Columbia’simbalanced mining laws create. The lack of consultation imposes on Takla the burden ofovercoming, without access to full information, the presumption that individual mining projectsare acceptable on their land. When Takla fails to prevent or ensure adequate regulation ofmining, it bears the consequences of adverse environmental and cultural impacts. Finally, toexacerbate these inequities, its members receive disproportionately few benefits from theindustry. Cumulatively, these difficulties infringe on Takla’s enjoyment of its aboriginal rightsto use its land and participate in decision-making regarding its land.During interviews, Takla’s members voiced particularly adamant criticism of the lack ofconsultation. Because free entry does not require consultation, they often only learn aboutclaims registered on their traditional lands through chance encounters with miners. Theseencounters have become rare since the advent of online registration, yet the number of claims has
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9skyrocketed.8Takla’s leaders said they are overwhelmed with NOWs for exploration proposals.They have neither the time nor the financial resources to conduct in-depth studies to supplementthe superficial information they receive and to identify any problems before the deadline. Even when they do respond, their former mining coordinator said, “99.9 percent of the time” thegovernment dismisses their objections. Mining companies sometimes voluntarily consult with Takla directly, and the band often seems to trust them more than the government. These effortsto reach out, however, take place on an ad hoc basis and have had mixed results. To complicatematters, confusion exists among all parties about whether government and industry should consult with chief and council or keyoh holders and which of these representatives of Takla havefinal say on a proposal.While exploration permits are the most common challenges it faces, Takla has had, atleast on one occasion, more success having a voice at the environmental assessment stage, whereproduction proposals are reviewed. Takla participated in a groundbreaking process involving aproposed open-pit mine at Kemess North. The government agreed to create a joint reviewpanel—consisting of representatives of the province, federal government, and First Nations—to evaluate the proposal. In the end, after the panel submitted its recommendation, the Minister ofEnvironment rejected the application for the mine. While this result was a victory for thecoalition of First Nations opposing the project, it was the first time such a panel had been appointed and the law does not require that such a panel conduct the environmental assessmentin every instance.In addition to experiencing a lack of consultation, Takla has seen evidence of the harmsmining can cause. While open-pit mines can completely destroy their areas, exploration sites,8See map “Claims Registered on Takla Lake First Nation’s Traditional Territory” in this report.
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10which are more common, have a significant cumulative effect in the environment. Deforestation for roads, spurs, and drill pads combined with noise pollution have disrupted habitat, and members of Takla report a decline in the wildlife they hunt. In addition, they fear the effects ofcontamination from the many chemicals that different stages of the mining process require. Thepresence of abandoned mines, such as the sixty-year-old Bralorne-Takla mercury mine whosecontaminants are potentially linked to a cluster of illnesses, heighten the concern that exposure topoisons could affect human health. The government and mining companies often argue that theproblems are not as serious as Takla portrays, and IHRC does not have the scientific expertise to determine the exact environmental and health effects of mining on Takla’s traditional territory.Nevertheless, eyewitness reports and IHRC observations suggest that some harm does occur andthat there is a need for independent studies—not done by government, industry, or FirstNations—to allay or provide support for Takla’s fears.Mining also threatens Takla’s culture and spiritual life. The registration of claimswithout consultation may be viewed as culturally insulting to Takla given their historicoccupation and claims to traditional lands. At later stages of the process, environmentaldegradation interferes with Takla’s subsistence hunting, food gathering, and use of medicinalplants, and with the transmission of cultural knowledge that accompanies those activities. Finally Takla members generally feel a spiritual connection to the land, and some told IHRC that theyexperience personal pain when they see the environment injured by mining.While Takla feels the burden of a lack of consultation and faces environmental and human consequences from mining, the community receives few of the direct economic benefitsthat should accompany mineral development. Many members of Takla said they would like to see revenue sharing, but most mining in the region is at the exploration stage and exploration is
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not a profitable venture. Northgate reportedly has such financial compensation agreement with Takla and residents of keyohs near the producing Kemess South Mine, but several recipientscalled it inadequate. In 2008, the B.C. government has adopted a revenue-sharing program,under which the revenue generated through permitting and regulation procedures will be shared with affected First Nations. The program recognizes that First Nations should share in theeconomic gains of mining, but Takla has received no benefits from it yet, and the programapplies to only newly approved projects, not to existing ones. Takla members also repeatedly called for jobs and associated training. Some mining companies voluntarily enter into ad hocemployment agreements with Takla, but these jobs are seasonal and, given the nature of thework, rarely provide health benefits. They are also limited in number because they often requireskills that members of Takla and other First Nations do not possess.RecommendationsTo help shift the burden of mining off First Nations and to increase respect for theiraboriginal rights, this report makes recommendations to each of the key stakeholders. Thegovernment should recognize aboriginal rights as a guiding principle of any developmentdecision that affects First Nations, thus solidifying the presumption that First Nations are entitled to heightened protections. The government should clarify the requirements of meaningfulconsultation and initiate it from the beginning of the mining process because once themomentum of a project gets started it is hard for First Nations to stop it. The government should also facilitate independent studies of environmental and human rights impacts, impose morestringent requirements on proposed mining projects, expeditiously clean up abandoned mines,and encourage the sharing of mining’s economic benefits with First Nations.
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This report also makes recommendations to industry and First Nations. Mining companies should acknowledge that indigenous peoples have special rights and interests and takethem into account in their interactions with First Nations. They can do so by increasing consultation efforts and negotiating, in a fair and transparent manner, to share the benefits ofmining. At the same time, Takla and other First Nations should internally determine theirwishes, such as their desired means of consultation and how many and what type of benefits they want. They should then clearly convey these preferences to other stakeholders. Takla in particular should also finish its land-use plan so that all parties know where it is willing to permitmining and where traditional uses or spiritual significance make mining unacceptable.