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Viewing mining’s effects on First Nations through the lens of aboriginal rights

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  • Don
    ... From: Ramsey Hart To: Sent: Tuesday, November 01, 2011 6:39 AM Subject: [MWC-News] Viewing mining’s
    Message 1 of 1 , Nov 1, 2011
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      ----- Original Message -----
      From: "Ramsey Hart" <ramsey@...>
      To: <news-list@...>
      Sent: Tuesday, November 01, 2011 6:39 AM
      Subject: [MWC-News] Viewing mining’s effects on First Nations through the
      lens of aboriginal rights

      A good overview of the issues in BC, and also many other parts of Canada
      from West Coast Environmental Law Blog


      Viewing mining’s effects on First Nations through the lens of aboriginal
      31 October, 2011

      A Guest Post by Bonnie Docherty, Lecturer on Law and Senior Clinical
      Instructor, Harvard Law School International Human Rights Clinic

      The ongoing tension in British Columbia between mining interests and First
      Nations concerns has resurfaced yet again this fall. In September, Premier
      Christy Clark announced her B.C. jobs plan, in which she promised eight new
      mines and the expansion of nine existing mines by 2015. Although the plan
      pledges in general to “work more closely” with First Nations, it does not
      mention consulting with First Nations about those mines and in fact calls
      for expediting the granting of exploration permits, which many First Nations
      believe are currently issued too quickly. On November 7, the Canadian
      Environmental Assessment Agency is scheduled to decide whether to review a
      proposal from Taseko Mines Ltd. for a New Prosperity Mine in Tsilhqot’in
      First Nation’s traditional territory. The same federal agency rejected an
      earlier version of the proposal in 2010, and this year, the Tsilhqot’in have
      renewed their vocal opposition to the mine, describing the new proposal as
      worse than the original one.

      In the midst of these developments, the coalition First Nations Women
      Advocating Responsible Mining (FNWARM)brought stakeholders together in a
      panel entitled “The Future of Mining in British Columbia: Cooperation, Not
      Conflict.” The panel, co-sponsored by the University of Victoria
      Environmental Law Club, included high-level representatives of the mining
      industry and First Nations. The B.C. government declined the organizers’
      invitation to participate, however, which demonstrated the challenges of
      achieving the full cooperation the panel aimed to foster.

      I joined the panel as co-author of the 165-page report Bearing the Burden:
      The Effects of Mining on First Nations in British Columbia, published by the
      Harvard Law School International Human Rights Clinic in 2010. My remarks,
      which I elaborate on below, analyzed the aboriginal rights to which First
      Nations are entitled, illustrated the undue burden of mining First Nations
      bear despite those rights, and offered recommendations for how stakeholders
      could better share the burdens and benefits of this industry. I sought to
      bring an aboriginal rights perspective to the tensions between First Nations
      and mining in British Columbia, most recently exemplified by the jobs plan
      and Prosperity Mine proposal. Viewing the situation through a rights-based
      lens can help illuminate the problems and provide guidance for how to
      address them.

      Aboriginal Rights Law

      International and Canadian law both grant indigenous peoples special
      protections that are applicable to situations involving mining. At the
      international level, these protections stem from rights articulated in
      treaties to which Canada is party and is thus legally bound. The treaties
      include the International Covenant on Civil and Political Rights, the
      International Covenant on Economic, Social and Cultural Rights, and the
      International Convention on the Elimination of All Forms of Racial
      Discrimination. The rights also appear in the UN Declaration on the Right of
      Indigenous Peoples, a non-binding but widely accepted set of standards that
      Canada endorsed in November 2010.

      According to these legal instruments, First Nations have the right to
      participate in decision-making about the future of their lands and
      resources. In addition, First Nations have the right enjoy their cultures.
      Because their cultures are inextricably linked with the environment, this
      right requires that First Nations be able to use their lands. Finally, First
      Nations have the right to dispose of their natural resources. As party to
      the treaties mentioned above, Canada is legally obligated not only to
      respect these rights itself but also protect First Nations from abuses by
      third parties, such as mining companies. A critical first step to meeting
      these obligations is to ensure heightened scrutiny of mining activities that
      threaten First Nations’ territories.

      Canadian law also establishes special protections for First Nations. An
      extensive and complex body of jurisprudence interprets the aboriginal rights
      laid out in the Canadian Constitution Act of 1982. This case law permits
      infringements, such as mining, on First Nations’ territories, but it makes
      the infringements subject to safeguards that have increasingly protected
      First Nations’ interests. The 2004 Supreme Court case Haida Nation v.
      British Columbia is particularly significant on this front. It mandates that
      the government consult with and accommodate First Nations communities that
      might be adversely affected by proposed activities on their traditional
      territories. The case requires “good faith efforts to understand each other’s
      concerns and move to address them.” Together, therefore, international and
      Canadian law call for heightened scrutiny of proposed activities, such as
      mining, that threaten the rights of aboriginal peoples.

      An Unfair Burden

      Despite their legal rights, First Nations have borne an unfair share of the
      burden of mining in British Columbia. This burden has existed at every stage
      of the mining process—from claim registration to exploration to production
      to cleanup of abandoned sites. B.C. mining law offers some protections for
      First Nations communities, but it generally favors industry. On paper and in
      practice, the legal regime has failed First Nations in three major ways. It
      has provided inadequately for consultation. It has resulted in harms to the
      environment, human health, and First Nations’ cultures. Finally, it has
      produced limited benefits for First Nations communities.

      Inadequate Consultation

      First, the B.C. government has fallen short in its duty to ensure adequate
      consultation with First Nations about proposed mining projects. The problem
      is evident from the very beginning of the mining process. Under British
      Columbia’s Mineral Titles Online system, an individual needs only an easily
      obtainable free miner certificate, an internet connection, and a credit card
      to register a claim to a piece of a First Nation’s traditional territory.
      The law does not require prior notification of the affected First Nation,
      even though at this stage miners start to become invested in developing a
      site because they can do some preliminary exploration. At the next stage of
      full exploration, the B.C. Mines Act requires a proponent to submit a Notice
      of Work to First Nations before the proponent can receive a permit for
      activities on traditional territories. The First Nations, however, generally
      have only thirty days to respond. They have neither the time nor the
      resources to prepare a proper evaluation of a proposal in that window, yet
      Premier Clark has pledged in her jobs plan to expedite this process. First
      Nations have also had inadequate opportunities for consultation at the later
      stages of the mining process. The flawed consultation process has interfered
      with First Nations’ right to participate in decision-making about what
      happens to their land.

      Harms to the Environment, Human Health, and Cultures

      Second, the widespread mining activities in British Columbia have
      cumulatively and adversely affected the environment, health, and cultures of
      First Nations communities. For example, some First Nations have observed a
      decline in wildlife in their traditional territories. Noise, deforestation,
      and road construction have driven some animals away, and First Nations fear
      that those who remain may be contaminated by pollution from mining
      operations. Wildlife has traditionally been an important source of food for
      First Nations, and the unavailability of game has compelled some community
      members to change their diets, which has had negative health impacts. The
      recent challenges of hunting have also interfered with First Nations’
      long-standing cultural practices. Due to these harms, First Nations cannot
      fully enjoy their culture, which is inextricably linked to the environment.

      Lack of Benefits

      Third, while bearing an unfair burden from mining, First Nations in British
      Columbia have generally received a smaller share of the benefits than other
      stakeholders. Some First Nations have reached revenue and profit sharing
      agreements with government or industry and had job training and employment
      opportunities. Research suggests, however, that these benefits have not been
      universal and that, in many cases, First Nations have found the benefits do
      not outweigh the harms they are experiencing. In other words, they have had
      limited say in and not accrued sufficient benefits from the disposal of
      their natural resources.


      The adverse effects of mining stem from the failure to uphold the special
      protections guaranteed to First Nations by international and Canadian
      aboriginal rights law. These effects must be dealt with so that the undue
      burden is shifted off First Nations. Keeping full achievement of First
      Nations’ rights as the end goal can help guide the process of making that

      Most important, the B.C. government needs to reform its mining laws. An
      amended regime should ensure greater First Nations involvement in
      decision-making. For example, meaningful consultation should begin at claim
      registration, and the law should grant First Nations more time and more
      resources to respond properly to project proposals at any phase. Reforms
      should also increase protections for the environment, human health, and
      cultures, which would allow First Nations to enjoy the use their land. The
      law could lessen mining’s footprint by requiring more detailed baseline and
      cumulative impact studies as well as more rigorous monitoring. Finally,
      modifications to the law should expand the government’s existing revenue
      sharing program while encouraging mining companies to adopt comparable ones.
      Such programs would give First Nations more benefits from the disposal of
      their natural resources. As a whole, legal reforms would not only better
      safeguard First Nations’ rights but also provide increased clarity that
      would to be to everyone’s advantage.

      Other stakeholders should join the B.C. government in playing a role in
      reducing the tensions between mining and First Nations. Mining companies
      should take more voluntary steps to improve relations with First Nations.
      While some companies have made efforts to work with First Nations, they
      should augment communication with the communities at all stages of the
      mining process, ensure fairness in benefit-sharing agreements, and provide
      increased training and employment opportunities for local First Nations.
      First Nations themselves should also take action, most notably by making
      their preferences explicit. In particular, they could facilitate a more just
      process if they clarified how they prefer to be consulted, what areas of
      land they believe should remain off limits to mining, and what types of
      economic benefits they value most.

      The recent panel at the University of Victoria wisely called for
      “cooperation, not conflict.” The new B.C. jobs plan, the proposed Prosperity
      Mine, and the B.C. government’s refusal to participate in the panel have
      highlighted the challenges behind cooperation. Nevertheless if government,
      industry, and First Nations work together, they can achieve a system that
      both protects First Nations’ aboriginal rights and spreads the burdens and
      benefits of mining across all of the parties involved.

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