Indigenous Rights and Mining – Recent Developments, Opportunities and Challenges

Jamie Kneen Communications and Outreach Coordinator responsible for: strategic research, social media, and public engagement; our Africa program, environmental assessment, and uranium mining.

By Ramsey Hart, Canada Program Coordinator

[An earlier version of this article was presented at the First Nations Environment Conference for Northern Ontario in October of this year in Thunder Bay.]

One of MiningWatch’s core areas of work is the promotion of Indigenous rights and recognition of title and the stewardship role that Indigenous people maintain across Canada and internationally. This article offers an overview of recent developments, including hopeful signs but also the considerable challenges in reconciling Indigenous rights and title with the mining industry and Canadian governments. This is a critical time for these issues as high mineral prices and provincial and federal governments that are clamouring for resource development have resulted in a long list of projects moving through the advanced exploration, evaluation, and “permitting” phases.

Regardless of whether they support or object to mining in their territories, the large number of mining projects being advanced across Canada represents a significant stress for most Indigenous communities as they struggle under the challenge of finding the resources to engage with the industry and governments. The current situation does, however, provide a significant opportunity for those nations that have not settled land claims, as the interest in mineral development can be used to press for resolution of the many outstanding issues around the recognition of Indigenous rights and title in Canada.

In 1982 Canada’s new Constitution recognized Aboriginal and treaty rights. Since then Indigenous peoples have used the Canadian court system to achieve further articulation of the governments responsibilities when making decisions that could infringe on these rights. Without getting into a detailed analysis of the various court decisions, there is now a clear recognition that Indigenous title to land exists and that there is an obligation on the part of federal and provincial governments to consult and accommodate Indigenous peoples when planning and implementing activities that would affect existing or asserted rights.

The Ontario Mining Act has been the first Canadian mining law to integrate Aboriginal consultation into requirements for exploration and mine development. Ontario’s new law and the approach of most other provincial governments with regard to mining do not, however, recognise the stricter standard of Free Prior and Informed Consent (“FPIC”) that has been expressed in the UN Declaration on the Rights of Indigenous Peoples and other international standards. The weaknesses of the new mining act are revealed by the struggle of Kitchenuhmaykoosib Inninuwug (KI) to protect their territory from mineral exploration and the fact that Constance Lake First Nation had to resort to a blockade and a court injunction to force a junior exploration company to come to the table and engage in a meaningful consultation process. KI has been very active in reaching out to potential supporters, asking them to support their Watershed Declaration and creating a campaign webpage, short video clips, and action alerts. This approach could provide a good example of how to build alliances and avoid political isolation.

Under completed land claims, areas of Aboriginal title typically require something akin to FPIC, however this is only the case in parts of the northern territories, the Inuit territory in Labrador, and the Nisg’aa lands in B.C. Despite the limited formal recognition of FPIC, the concept and terminology is gaining greater currency. As an example of this, a journalist attending the 2011 Prospectors and Developers Association of Canada’s annual conference (the world’s largest mining conference) told me that he was pleasantly shocked at how often he was hearing the term come from the lips of industry people. The fact that the International Finance Corporation (the commercial investment branch of the World Bank) has included FPIC in its standards is a further boost to the broader recognition that Indigenous peoples must consent to development on their lands, not just be consulted about it.

Though inconsistent in their consideration of Indigenous perspectives, some environmental assessment processes have acknowledged and incorporated the concerns and opposition of Indigenous peoples to projects. In several cases projects have been stopped in large part due to Indigenous opposition. The proposed Kemess North gold-copper mine in BC, uranium exploration in the Thelon River watershed in the Northwest Territories, Niocan’s proposed niobium mine near Kanesetake, Quebec, and the proposed Prosperity gold-copper mine in BC have all failed to obtain environmental assessment approvals. In addition, the proposed White’s Point Quarry in Nova Scotia was rejected due to its incompatibility with non-Native livelihoods. (The Prosperity project has, however, been resubmitted – see note in this newsletter.) In the case of the Voisey’s Bay nickel mine, the project was not opposed but significant modifications were achieved through participation of Innu and Inuit. Of course we still have a long way to go as projects are still proceeding without consent – the Mt. Milligan gold-copper mine in BC and the Matoush advanced uranium exploration project in Eeyou Istchee (Cree territory in Quebec) are two examples.

Two Ontario First Nations that were not opposed to proposed mines but wanted to ensure the review process took their concerns and interests into consideration have been profoundly disappointed by the federal government’s response. The Pic River Ojibway recommended names for the members of the review panel for the Marathon Platinum-Group Metals project and a long list of comments on the draft guidelines for the Environmental Impact Statement. None of these recommendations were taken up and there is now a legal challenge being launched. Matawa First Nations have also had to turn to legal action after the federal government ignored their insistence on a joint review panel process for the first project to be reviewed in the much-hyped ‘Ring of Fire’ district.

In the provinces, where historic or numbered treaties have been signed, there is a growing body of evidence that calls into question the provincial and federal government’s interpretation of these treaties. Clauses in many of the treaties which permit the “taking up” of lands by the crown are of fundamental importance to the Crown’s belief that it is the highest authority over treaty areas. While the “taking up” clause is written into the treaties, oral tradition of the First Nations and historical evidence from the treaty parties indicate that this was not part of the spoken agreement that was made. The Supreme Court of Canada has acknowledged that given the oral tradition of First Nations and their inability to read the legalistic English treaties, oral promises are as important to the historic treaties as written promises. The key oral promises made to First Nations were that they would not be restricted to reserves and that they would always be able to continue to practice traditional activities as they always had. Recognition of this alternative interpretation of the treaties will go a long way to balancing the power dynamics around resource development.

A recent Ontario court decision has gone considerable distance in recognizing this alternative interpretation of the treaties. In a case that was heard over 10 years, Grassy Narrows First Nation argued that Ontario does not have the right to issue forestry or other permits that infringe on their hunting, fishing and trapping rights. Justice Sanderson found in Grassy’s favour in a decision that could have wide ranging implications. Of relevance to other treaty areas was the Judge’s finding that given the treaties were signed in a spirit of friendship between two sovereign states, the Crown breaks the spirit of the treaty when it unilaterally authorizes uses of the territory that infringe on Aboriginal Rights. The decision has invalidated permits issued by Ontario in the area covered by the case. To what extent other treaty Nations can use the decision in their own territories remains to be seen.

While these developments show promise, there are clear indications that further recognition still requires a major shift in the approach of provincial, territorial, and federal governments. British Columbia is a case in point. Premier Clark has made much of her goal to have eight new major mines opened in BC by 2015. While a number of BC First Nations are supportive of some of the currently proposed developments, it is unlikely that Clark can find eight new mines that have free, prior, informed consent of the affected BC First Nations, most of whom have never signed treaties or ceded territory to the Crown. Rather than dealing with fundamental issues associated with Indigenous rights and title, Clark is promoting one off-project agreements with First Nations. The agreements provide for revenue sharing through a percentage of tax revenues paid to BC but do nothing to address fundamental issues of rights and title and only put off resolution of the core issues.

How can the increasing assertions by Indigenous peoples, improvements in the recognition of rights and title, and the large number of projects pushing ahead be used to create a more fundamental shift in the relationships with provincial and federal governments and the industry? An important step in such a process is to build unity on basic principles of FPIC and recognition of rights and title. Clear communication of expectations on the part of communities and nations for how FPIC is to be implemented is also needed.

Unfortunately, responses to individual projects have divided many First Nations. The work of First Nations Women Advocating Responsible Mining is an important effort to build unity of purpose between First Nations in BC, including those that oppose specific projects and those that support development. The potential pressure for resolution of major issues from the push for new mineral developments is at risk of being eroded by the focus on one-off agreements, offering short-term settlements for revenue sharing. Insisting that fundamentals be addressed and a new relationship defined before signing individual project agreements would provide greater power to Indigenous peoples, but this is incredibly challenging given the pressing economic needs in most Indigenous communities. Building alliances outside of the Indigenous political and activist sphere will also be essential.