Resource firms try to learn lessons from Canada's troubled history with First Nations

Ethical Corp.

By April Streeter

The response to Canada's worst mining disaster showed the extent to which the industry and governments have failed to take sufficient action to protect indigenous peoples’ rights, critics say

The collapse of Imperial Metals’ Mount Polley gold and copper mine in British Columbia, sending an estimated 25 million cubic metres of post-industrial mining water and waste into nearby waterways and pristine Quesnel Lake, was Canada's worst mining disaster, and a watershed for the industry (pun intended).

In a report this year, Amnesty International called it a calamity for the First Nations people it affected, and said the British Columbia government's response has been inadequate: it has placed no monetary penalties on Imperial Metals; nor has there been significant change to what many agree are insufficient regulations in this key domestic industry.

Yet Mount Polley may have pushed more companies to address the issue of indigenous rights and to work together with indigenous representatives on agreements that support “responsible” mining.

“We are seeing an increasing number of companies engage First Nations in a more proactive way due to market and political pressure,” says Jacinda Mack, mining coordinator for First Nations Women Advocating Responsible Mining (FWARM), a group based in British Columbia. Mack is a member of the Xat’sull, or Soda Creek band, which was directly affected by Mount Polley. “The Mining Association of Canada (MAC) has supported this idea – but has no mechanisms to enforce companies to abide by it.”

Remediation after the collapse of Imperial Metals' Mount Polley mine, Canada's worst mining disaster (credit: Imperial Metals)

Canada’s historic mistreatment of the 164 First Nations people who occupied the vast land before its invasion by European settlers was put in the spotlight during Canada’s 150th birthday celebrations this summer. Sparked by the pulling down of Confederate monuments in Charlotteville, there was national debate over whether to remove the name of Canada’s founding prime minister, John A McDonald, from schools across the country because of his role in the 1876 Indian Act, and in setting up the residential system, which removed indigenous children from their families and placed them in residential schools, forcing them to forsake their culture.

A Truth and Reconciliation Commission inquiry in 2015 described the residential schools system, which lasted 150 years, as “cultural genocide”, and made a series of recommendations for Canada to redress its relations with its First Nations people, including inadequate access to clean drinking water, underfunding of schools, education, and health care programmes, and the unresolved cases of more than 1,000 aboriginal women who went missing or were murdered in recent decades.

Bottom line, both governments and companies need to get comfortable with the idea that some projects may no be able to go ahead.

It also strongly advised the government and companies in the extractives industries to recognise the right of Aboriginal groups to free, prior and informed consent (FPIC) on economic projects on their land, and drop opposition to fully adopting the UN Declaration on the Rights of Indigenous Peoples.

Trudeau’s government did the latter in 2016, and this summer set out plans to fulfil the commission’s other recommendations as part of a “renewed, nation-to-nation relationship with First Nations Peoples”.

But as business law firm Torys said in a briefing on FPIC last year, “Canada is still beginning its reconciliation with indigenous peoples. While it is important to acknowledge that progress has been made, we cannot lose sight of the long road ahead. Similarly, the principles of free, prior and informed consent are still relatively novel, and have not been subject to substantial interpretation.”

It added: “To build the necessary respect and trust that underlies reconciliation, we cannot simply proclaim it. We need to earn that respect and trust through conduct and action.”

Canada is a global mining super-power, but FPIC is still a new concept. Credit: Mining Association of Canada

Jamie Kneen, communications and outreach coordinator for watchdog group MiningWatch Canada, says: “Mount Polley is a good example of the lack of social investment the mining industry is making – and by that I mean paying the costs upfront, not just when [a company] can afford it. This is a bit characteristic of the whole industry – mining has a fair bit of gambling, a speculative element to

Balancing indigenous rights with harder-edged business interests has not been the mining industry’s strong point. Imperial Metals, for example, has seemed to exhibit a “head in the sand” approach to ongoing community relationships after the tailings accident, limiting its interaction with affected groups.

Despite lots of official and third-party reports on Imperial’s failings at Mt. Polley, the government has taken no punitive action against the company, prompting indigenous rights’ advocate (and former Soda Creek chief) Bev Sellars to file suit against the company in August, before a three-year statute of limitations on legal action ran out.

Canada's mining ministers don't share the same concept of responsible mining espoused by indigenous groups.

At an annual gathering of energy and mining ministers from the federal, provincial and territorial governments this summer, the talk was about how governments could help unlock the economic potential of mining while also reconciling relations with indigenous groups. MAC president Pierre Graton said in a press release that Canada’s mining industry already operates some of the “lowest-emitting, highest tech, and socially responsible mining operations globally.”

But FWARM’s Jacinda Mack said ministers do not share the concept of responsible mining espoused by indigenous groups. The latter, she says, “respects FN [First Nations] rights and cultures; it looks at all land uses,” she says. “It is developed or rejected based on full consultation and partnership with First Nations: intergenerational health and safety must be put before profits.”

MiningWatch representative Kneen says it is important to rationally assess which mining projects make environmental and social sense for local communities and indigenous groups. “Looking at a ‘whole industry’ analysis we know that as mines get bigger and [ore] grades get lower, waste dumps get bigger, and the probability of [tailings dam] failure goes up – that’s a historic trend that we are actually seeing.”

Jacinda Mack of the First Nations Women Advocating Responsible Mining

MiningWatch has a list of common-sense guidelines for responsible mining, which include respect of indigenous rights and informed consent, as well as safety and environmental guidelines. But Kneen says neither the government nor corporations agree on these guidelines or have yet accepted the idea that some ore bodies just won’t make the safety/sustainability cut.

“There’s an unwillingness on the part of government and companies to spend moderate amounts of money to solve the problems up front. Bottom line, both governments and companies need to get comfortable with the idea that some projects may have to go,” he says.

In the Mining Association of Canada’s (MAC) 2016 Towards Sustainable Mining report, it is clear that member-companies have made gradual progress with First Nation and local community outreach, as well as safety and health, and crisis-management planning. As MAC itself points out, in the early years of reporting, most companies had only informal systems to engage with communities; in 2006, for example, only about half of the member-companies had even identified the communities affected by their operation. A decade later, closer to 90% of MAC companies have put communications systems in place, and about 85% of companies also have a crisis-management plan.

Our approach was if Dumont is going to be a success it has to be a success for everyone, not only the local First Nation band but all the stakeholders.

Alger St-Jean, vice president of exploration for RNC Minerals, headquartered in Toronto, says that he thinks the mining industry has, as a whole, recognised the importance of the social acceptability of mining projects. With RNC’s Dumont Mine, an open-pit nickel mine under development in the Abitibi-Algonquin region of Quebec, RNC has worked for years to develop mutually beneficial relationships with the local Abitibiwinni First Nation. In May 2017 RNC and the Abitibiwinni signed an Impact and Benefit Agreement (IBA) that, while secret, details how the two will co-operate on environmental protection and economic development as the mine proceeds

The promise of jobs and mining royalties from Dumont mine is "hard to pass up" (credit: Dumont)

IBAs are becoming more common between local groups and mining corporations, and many even include revenue-sharing agreements.

St-Jean wouldn’t say whether the Abitibiwinni-RNC IBA had revenue-sharing, but he said that the company was careful over the long negotiation time-frame to really listen what was important to the Abitibiwinni.

“Our approach was if Dumont is going to be a success it has to be a success for everyone, not only the local First Nation band but all the stakeholders,” he says. “We had a proactive community consultation programme which allowed us to identify the issues that were high value for the Abitibiwinni and other stakeholders but were low cost for us or could be low cost if we integrated them early on in the planning process.”

RNC has shown leadership in the IBA with the Abitibiwimmi; Chief David Kistabish told the press that the agreement may help with economic development and prevent young people from fleeing to the cities. He added that the promise of jobs and mining royalties from Dumont is “hard to pass up”.

While provincial and federal governments have a legal obligation to consult with First Nation bands before granting logging or mining rights on ancestral lands, companies do not have that obligation.

Yet other observers of these agreements say the companies frequently get the better deal. One snag is that while provincial and federal governments have a legal obligation to consult with First Nation bands before granting logging or mining rights that occur on ancestral lands, companies do not have that obligation, reducing indigenous groups’ leverage.

A second problem is capacity: First Nation groups in many cases lack the technical capacity to negotiate with companies, to monitor and enforce agreements around land use, and to oversee watershed management. Lastly, IBAs can promise local groups money that fails to arrive, having been reinvested in the companies or vanished when mines become unprofitable.

An Inuit community at Clyde River in Nunavut in the Canadian Arctic. Credit: Greenpeace

“There is a learning curve when getting into the mining game,” says FWARM’s Mack. “Weak environmental protection laws, weak indigenous protection laws, and a legislated context that [believes] mining is the highest use of the land, makes for complex situations with [IBAs] and communities.”

One way to change the equation is to get indigenous communities directly involved in mineral extraction development combined with renewable energy development or carbon-credit creation, as the BC First Nations Energy & Mining Council is endeavouring to do. 

And for companies that are ready to see collaboration and consultation with indigenous First Nation groups as a priority, the Initiative for Responsible Mining Assurance plans to launch later this year a certification process to recognise environmental and social responsibility achievements and progress companies are making. (See Canadian mining firms clean house in hopes of leading the green economy)

St-Jean of RNC Minerals says the greatest key to a successful ongoing relationship with affected indigenous communities is making sure all local stakeholders have a sense of ownership around mining projects. “Integrating them, making sure that they are not left out or forgotten, as they often have been, is important,” he says.

Main picture credit: Mining Justice Alliance