Canada's Assembly of First Nations wants legal protections from mining
A Harvard Law School study is calling for "urgent" legal reform to shift burdens from First Nations at every point in the mining process onto government and industry.
Posted: Wednesday , 09 Jun 2010
RENO, NV -
The top leader of Canada's Assembly of First Nations, National Chief Shawn A-in-chut Atleo, Tuesday announced the organization's support for a Harvard Law study calling for legal reform to protect British Columbia First Nations from mining interests.
The report, Bearing the Burden: The Effects of Mining on First Nations in British Columbia, authored by the International Human Rights Clinic (IHRC) at Harvard, calls for legal reform "that ensures government, industry and First Nations more fairly share the benefits and burdens of mining."
IHRC Instructor Bonnie Docherty, who authored the report, called on British Columbia "to shift its presumptions about mining. The aboriginal rights of First Nations should be considered alongside the interests of the mining industry."
A-in-Chut, who was appointed BC's first indigenous chancellor, urged provincial and national governments to take new measures in land planning in order to avoid confrontations between mining companies and First Nations communities. He noted that better support for First Nations in development of their own land use plans will help during discussions for prospective mining developments within the industry.
Randy Hawes, B.C. minister of state for mining, said he disagrees with the study's general premise and asserted it failed to acknowledge a significant policy shift by the province two years ago, which mandates revenue sharing with First Nations on any major new expansion of a mine "where a proportion of the revenues coming to government are shared with First Nations."
The Harvard study examined how B.C. Mineral Tenure Act is affecting the Takla Lake First Nation, which is one of more than 75 First Nations and bands in British Columbia. The report did not examine mining regulations in other Canadian provinces.
The Takla Lake First Nation has been involved in a long running battle with the mining industry, in particular Northgate Minerals and its Kemess North project. The Takla First Nation has argued it needs more options to address what they say is a gold rush that is taking place throughout their traditional territory.
Takla First Nations Chief Dolly Abraham told the Vancouver Sun that millions of mining tax dollars have gone to government coffers, but not a penny has gone to the Takla Lake First Nation.
Mining Coordinator David Radie said since online claim staking began in 2005, claims have increased fivefold and the burden is on cash-poor aboriginal communities to examine the environmental impacts of specific mining claims.
In the Harvard report, Docherty says the experiences of the Takla Lake First Nation, which is based in remote northern BC, "illustrate that the province's mining laws are a problem in practice as well as on paper." She asserted the Takla are "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 harms caused by different stages of mining."
Even tribal members who accept mining "say that they have not received the benefits that are supposed to accrue from the industry-in particular, revenue sharing and employment opportunities," the report claimed. "Many members of the Takla said they would like to see revenue sharing, but most mining in the region is at the exploration stage and exploration is not a profitable venture."
The document said the legal regime governing mining on Takla territory "consists of a complex collection of laws that can be difficult to understand and navigate."
Docherty claims the Takla's experiences with mining "exemplify the unjust situations British Columbia's imbalanced mining laws create."
Despite its narrow focus on Takla Lake, the Harvard report makes recommendations to the mining industry and First Nations as a whole in BC.
Docherty calls federal and provincial governments to provide more funding for independent studies about mining impacts. She also suggested legislation should incorporate "explicit reference to aboriginal rights."
The BC Government should require mining companies to submit human rights impact assessments in addition to environmental impact assessments prior to beginning a mining project, the report suggested.
The province should also ensure "that the interests of First Nations are adequately represented in decision-making regarding mining activity on First Nations' land."
Docherty urges the provincial government to clarify its revenue-sharing program "and encourage mining companies to undertake revenue-sharing plans and increase employment programs with First Nations."
Mining companies should "increase consultation efforts with First Nations at all stages of the mining process," she added.
The study also urged First Nations to decide who would represent their communities in interact with mining companies and government officials.
The report also called upon First Nation to finish developing a land use plans "that identifies areas where it is willing to permit mining and areas where traditional uses or spiritual significance make mining unacceptable."
To read the full report, go to http://law.harvard.edu/programs/hrp/BearingTheBurden.pdf