Mines minister rejects Harvard investigation

There’s urgent need for reform of laws stacked against First Nations in their relationship with the mining industry in British Columbia, a study by the prestigious Harvard Law School concludes.

In theory, Canadian law and the international treaties Canada is a party to protect First Nations from development that threatens their environment and culture, the two being closely intertwined.

In practice, “the B.C. legal regime and its implementation regularly fall short of that standard,” says the study, called ‘Bearing the Burden.’. They favour industry, leave great discretion to government, and deny First Nations an effective means to have a say in what happens to their land.”

B.C. Mines Minister Randy Hawes vehemently disagrees.
“I don’t appreciate the fact that some American group is coming up from some place like Harvard University to do a study in British Columbia when, in fact, I think they should be looking first and foremost in their own backyards.”

In an interview, Hawes called the study “a preconceived statement of positions that is not accurate.”

But Takla First Nations Chief Dolly Abraham says the study does document her own experience of “how B.C. law and policy are used to avoid meaningfully addressing our Aboriginal rights, title, and community concerns.”
Abraham, a member of B.C.’s First Nations Women Advocating Responsible Mining (FNWARM), said her community is still struggling with contamination from past exploration and abandoned mines (including the 60-year-old Bralorne-Takla mercury mine, potentially linked to a cluster of illnesses).

“B.C. promised to help us clean up the legacy contamination from the mining industry, and yet no progress has been made,” she said. “At the same time, B.C. is constantly approving exploration projects in our territory while paying little attention to our concerns.”
The study was written by Bonnie Docherty, of the Harvard Law School’s International Human Rights Clinic. It focuses on the experience of Takla First Nation, northeast of Smithers.

At the heart of a regime that assumes mining to be an appropriate use of land is the system of “free entry,” that allows almost anyone to register a claim without consulting relevant landowners or First Nations.
The problems associated with free entry have been exacerbated by online registration, introduced in B.C. in 2005. In the past, First Nations people might at least encounter a prospector staking a claim on the land. Now, a claim can be filed from anywhere in the world, and Takla receives no notice.

Takla also receives incomplete information about more intrusive exploration and development proposals, the study states, adding: “it also has limited opportunities to gather its own information and has been frustrated in some of its attempts to communicate with government officials. This situation challenges Takla’s right to participate in decisions that affect its traditional land and resources.”

Many of the recommendations made in the Harvard study mirror changes currently underway in Ontario, changes that were spurred by desperate action by First Nations.

Two years ago, seven Aboriginal leaders went to jail rather than accept mining projects they decided would cause irreparable damage. An appeal court that ordered the release of the chief and council of Kitchenuhmaykoosib Inninuwug in Northern Ontario and a leader of the Ardoch Algonquins in Eastern Ontario cited the province’s antiquated mining legislation as part of the problem.
Ontario’s new mining act, proclaimed last October, affirms Aboriginal and treaty rights. The details are in the regulations that will take up to five years to complete, but Bernie Hughes of the Ontario ministry of northern development and mines says the act addresses gaping holes in the current law.

New provisions include:
* Obligations for early notification of Aboriginal stakeholders
* Provision for prohibition or restrictions on development on Aboriginal lands of cultural significance
* Graduated permitting and consultation requirements depending on environmental impact and affected rights
* Mandatory cleanup of any project, large or small
* A dispute resolution process for Aboriginal consultation.
Ontario will also introduce online staking but, unlike in B.C. where the online system has aggravated problems between miners and First Nations, Hughes anticipates that it will help address them.

“We’re going to be notifying First Nations and Metis and industry that a claim has been staked,” he said. At the same time, the government will provide notice to the claim staker of any Aboriginal interests that may be impacted. And, most important, before the prospector goes on the land, even to do something as minimal as walking the claim, an application form must be filled out that goes to the First Nation affected.

“The First Nation will be aware of proposed activity before it happens,” Hughes said.

Ramsay Hart of MiningWatch Canada noted that Ontario’s new law doesn’t go much further than ensuring that the province meets the constitutional requirements set out in case law over the years.

But any inference that B.C. could undertake a similar overhaul does not sit well with Hawes, who for instance rejects the suggestion that First Nations be notified at the claim-staking stage, as it would be easier for potential problems to be addressed before a project gathers momentum.

First Nations get notified when mechanized activity is due to take place, Hawes said. To do it earlier, as is planned in Ontario, would cause a “horrendous backlog.”

Hawes also disagreed with instances outlined in the study where Takla leaders felt consultation had been a sham and the government paid no attention to their submissions.

He said any First Nation leader who is dissatisfied with the process can make an appointment to talk to him.
The study notes that in 2008, the B.C. government decided to share revenue from permits and fees, but the plan applies to only newly approved projects and Takla has received no benefits from it yet.

Again, Hawes disagreed, pointing to payments of $1 million a year being made by Northgate Minerals to Takla and two other First Nations affected by its Kemess South open pit mine (due to close next year).