First Nations' Rights Need More Protection from Mining Activities

Published by MAC on 2010-06-11
Source: Harvard Law School, Takla Lake Nation, First Nations Women Advocating Responsible Mining, The Canadian Press

First Nations' Rights Need More Protection from Mining Activities

Study Shows Need for Legal Reform in British Columbia

Harvard Law School Release

7 June 2010

Cambridge, MA - The special rights guaranteed to First Nations receive inadequate attention in British Columbia when compared to mining interests, the International Human Rights Clinic (IHRC) at Harvard Law School said in a report released today.

The report, Bearing the Burden: The Effects of Mining on First Nations in British Columbia, analyzes existing mining laws and highlights the troubling situation of Takla Lake First Nation, whose mineral-rich territories have been repeatedly opened to mining without adequate consultation by government and industry. Mining claims increasingly blanket Takla's territory due to the online "free entry" system. Anyone with a credit card and an internet connection can buy a mining claim on traditional lands, where First Nations have lived for centuries.

"First Nations suffer the consequences of a regime that favors mining over the environment and indigenous culture," said Bonnie Docherty, lecturer on law and clinical instructor at IHRC. "British Columbia should reform its laws to elevate fundamental aboriginal rights."

According to the IHRC report, past and present mining activity cumulatively represents a serious threat to Takla's way of life. It has already affected habitat, disrupted wildlife, and caused fear of contaminated soil and water. Finally, the community has received few of the benefits that may come with mining.

Bearing the Burden offers a unique look at British Columbia's mining regime - on paper and in practice - through a human rights lens. Both international and domestic law entitle First Nations to special protections related to their traditional territory. First Nations have the right to participate in decision-making about the future of their land and natural resources. They also have the right to use the land, which is inextricably linked to their culture, spiritual life, and livelihoods.

In light of the effects of mining, IHRC calls for legal reform that ensures government, industry, and First Nations more fairly share the benefits and burdens of mining. Law reform should make rights the foundation of the B.C. mining regime.

"British Columbia needs to shift its presumptions about mining," Docherty said. "The aboriginal rights of First Nations should be considered alongside the interests of the mining industry." Despite some ad hoc successes, the B.C. legal regime generally does not offer First Nations adequate consultation during the mining approval process. For example, in some cases, members are not notified early enough to stop the momentum of a project. In other cases, they are not given the time or tools to conduct studies and mount a reasonable defense. Institutionalized rights protection would help remedies such deficiencies.

To read the full report, visit http://law.harvard.edu/programs/hrp/BearingTheBurden.pdf

To schedule an interview with author Bonnie Docherty, contact Cara Solomon at: 617-495-9214 or csolomon@law.harvard.edu

For more information on First Nations, please visit: www.fnwarm.com

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First Nations Demand Mining Reform in Wake of Harvard Law Report

Independent human rights study details unjust B.C and federal mining laws

Takla Lake Nation & First Nations Women Advocating Responsible Mining Press Release

7 June 2010

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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B.C. mines minister calls Harvard report on First Nations rights 'hogwash'

Questions why Harvard doesn't look in its own backyard instead

The Canadian Press

16 June 2010

Prince George, BC. - B.C.'s mining minister, Randy Hawes, is dismissing a report from an International Human Rights Clinic of the Harvard Law School, as the province's three major political First Nations groups call on the Liberal government to heed the findings.

The 143-page report, Bearing the Burden: The Effects of Mining on First Nations in British Columbia concluded that special rights guaranteed to First Nations receive inadequate attention in the province compared to mining interests.

"To be blunt, I think the report is hogwash," said Mr. Hawes, questioning why Harvard doesn't look in its own backyard or concentrate elsewhere in the world where there are egregious impacts on indigenous people.

Mr. Hawes called the report, released last week, a "completely flawed document."

The minister of state for mining argued that the province is making "great strides" with First Nations, having recently introduced revenue sharing on mining projects and major expansions. He also noted that mines provide revenue that pays for services like health and roads that benefit all British Columbians, including Aboriginal citizens.

While he noted that some First Nations reject mining for a more traditional lifestyle, he also said traditional ways are linked to lower birth weights, higher birth rate deaths and lower life spans. The way to improve those outcomes is to share in the wealth and jobs that come from mining, he said.

Following the report's release, B.C.'s First Nations leaders called on the government to make mining legislation and policy reforms a priority.

They said it is time B.C. legislation matched Canadian laws or the United Nations declaration of rights for indigenous people.

Among the groups that signed on to the joint statement sent to Premier Gordon Campbell, were the First Nations Summit, the Union of B.C. Indian Chiefs, the B.C. Assembly of First Nations, and the Carrier Sekani Tribal Council in north-central B.C.

Dozens of individual First Nation leaders also signed the joint statement.

While First Nations have not formally had any discussions with the province on the Harvard report, they've heard what has been said, observed Carrier Sekani Tribal Council vice-chief Terry Teegee. At the very minimum, the province should adopt the UN declaration of rights, which includes a call for free, prior and informed consent by First Nations before natural resource development proceeds on their traditional lands.

Mr. Teegee noted that First Nations in the Carrier Sekani region are being overwhelmed by mineral rights claims.

It's not the first time First Nations have called for mining reform.

In 2008, following a mining summit in Prince George, First Nations requested an end to the free-entry mineral-staking system so companies could enter First Nations' territories only after they received consent.

However, Mr. Hawes said the government is not interested in changing its more-than-100-year-old free-entry system, which also allows companies to stake tenures online. He noted that if a mechanized disturbance occurs on the land during exploration - including cutting down trees - a permit is required that triggers some First Nations consultation.