Technology Review

Treaties, Mining,

&
International Law

 

 

 

Jack A. Caldwell

&

Christopher Cornish

 

 

 

October 2006


Table of Contents

 

Introduction   4

personal perspectives  4

a canadian perspective  6

edumine  9

InfoMine Library  11

Other Web Sources  11

International Law   11

 


Introduction

This piece is for those of you who are, like me, curious and concerned about mining in areas where there are folk who have been there a very long time—sometimes called by some people indigenous or aboriginal or native peoples.  Sometimes they are called nations, although in the Canadian context the word is getting fuzzy and blunt as a result of its use as a political instrument.

personal perspectives

Let me confess my background so my prejudices can be seen and analysed by the reader who dislikes what I say or chooses to take me to task. 

I was born and brought up in South Africa.  I need hardly go through the terms used there: African, native, black, Hottentots, Bushmen, Coloured, Indian, and Asian.  The world I grew up in was multi-hued, multi-linguistic, and nobody could agree with anybody else what to call each other or themselves.  And sometimes we called one another nasty names.  I became an expert in vituperative terms applied to those whose native tongue was Afrikaans, and used them liberally against the kids up the road, who in turn mocked my pink skin (rooinek) and English-speaking ways (donderse engelsman).  Recall that Dutch was the only language my paternal grandmother spoke.  And my maternal grandmother never did well away from German, her birth language. 

At university I learnt that everybody, except maybe the Hottentots and Bushman had entered the country in the last five hundred years.  My Spanish friends though this a very short time, reminding me of the two thousand years of their nationhood, interrupted for nearly five hundred years by foreign domination, during which time many Spaniards were the oppressed indigenous peoples, until they threw off the foreign yoke.

I spent twenty years in the United States.  For many of those happy years I lived and worked in New Mexico where the Indian groups are a significant sector of the population.  I worked with Hopi and Navaho engineers to remediate and stabilize old uranium mill tailings piles.  And we all worked with Hispanic populations that were farming in northern New Mexico when the Puritans arrived on the eastern shores. 

My son was born in Africa; the forth or fifth generation to live there.  A typical American university student, he decided to visit the pretty girl in the financial aid office when he saw an announcement offering money for African-American students.  He boldly announced his application, and she equally boldly told him the support was for blacks not whites.  Words do count.  To his credit, he got a date.  To her credit, she arranged more money for him via the ROTC which is color-blind.  He got a degree in political science and now is a navy man. 

Then back to retirement in Canada where all of a sudden these new uses for words bombarded me.  I confess until I returned a year ago to Vancouver, I had never heard the word Aborigine applied to any but an Australian, or used by Darwin in his writings to refer to the folk he saw on his voyage.  And I cannot recall every hearing the term indigenous applied other than in biology.  I love words and their changing meanings and shades as much as anybody, so I decided to use this article as a chance to examine new verbal vistas.  I was prompted by the writings of Christopher Cornish that hit my desk and which I reproduce in the following section.  And I was prompted by reading on this site, that the Squamish community/nation claims the land on which my house (mortgage paid off) is situated. 

a canadian perspective

The following was written by Christopher Cornish, a former policy advisor to two Canadian Ministers of Indian Affairs and Northern Development, and president of Aboriginal Relations Consulting, which can be reached at this link.

Thanks to worldwide demand for our abundant natural resources, the Canadian economy is once again in the throes of an economic boom.  Whether it’s in oil and gas, energy transmission, or base and precious minerals mining, exploration and development activity is thriving across the country.  Resource industries share in common not only a high degree of risk and capital investment, but the need for secure and stable access to the resources they depend on, particularly where their activities take place on lands that are part of traditional territories of aboriginal people, or that are in areas where treaties and land claims have been settled or are about to be.

Doing business in these territories is complex, as aboriginal people often have rights and expectations that may seem incompatible with the objectives of exploration and development companies.  Complicating matters further, a new level of uncertainty has been introduced with the recent Supreme Court of Canada rulings (Haida/Taku & Mikisew cases) concerning Aboriginal consultation and accommodation.  These latest decisions in particular have significant implications for the mining industry.

The duty to consult is the latest in a series of landmark rulings handed down by the Supreme Court in its efforts to clarify the purpose of S.35, the constitutional clause recognizing and affirming the collective Treaty and Aboriginal rights of First Nations, Inuit, and Métis Canadians.  Therefore it helps to understand the central message being sent by the Court, and the basic context behind it.

This land belonged to Aboriginal people.  They have certain un-extinguished and un-extinguishable rights.  As newcomers we made promises (Treaties) in exchange for our being here now.  Given that those promises do not expire, and as former Chief Justice Antonio Lamer put it, “we’re all here to stay”, there is an ongoing duty to reconcile our sovereignty with the pre-existence of theirs.  The Court’s prescription for achieving reconciliation is for parties to negotiate the evolving nature of the relationship.  Arbitrarily imposing on each other’s existing rights and obligations, or ignoring past commitments is not an option.  Reconciliation through negotiation is the new paradigm, and the court continues to level the playing field in that direction.

The duty to consult rests with and is grounded in the “Honor of the Crown”.  To be meaningful, consultation must contemplate the accommodation of interests. The main challenges for governments are: there are no “one-size-fits-all” approaches to consultation and accommodation; determining on a case-by-case basis when and where the duty arises and what thresholds are required to trigger the duty is time-consuming; and  governments lack the will, the resources, and the manpower to undertake, manage, and monitor each and every individual consultation process.  Although industry isn’t legally obliged to consult or accommodate, there are compelling reasons for it to do so voluntarily, given it bears the risks and consequences if the Crown fails to properly fulfill its obligations.   

First, time is money.  Industry can wait for governments to carry the ball, and gamble projects won’t be met with legal, procedural or administrative challenges resulting in costly delays and litigation, or can adopt a more proactive approach in its relationships with Aboriginal groups.  This means early engagement with communities, building relationships and establishing trust at the front end of project planning stages.  It means genuinely partnering with communities in the personal and political sense, not just in a business or formal sense.  It requires being open to sharing more of the benefits that flow from resource development, the capacity to listen and be sensitive to the communities’ concerns, and a willingness to act on them.  Mitigating the negative social, cultural, and environmental impacts of development is often of greater concern to Aboriginal communities than the potential economic benefits. 

Focusing on the relationship alone is not enough however.  Having the means to benefit from opportunities is equally important.  Contracting and employment opportunities, skills and career training, equity positions, joint-ventures, and financial compensation are but some of the issues to consider when formalizing the relationship.  Faced with looming skilled and unskilled labor shortages, these are worthwhile investments for industry. 

Finally, approaching the relationship as an opportunity rather than as a cost of doing business will lead to stable, productive, positive, long lasting, and mutually beneficial relationships.  Companies and Aboriginal communities who formally come to terms on a project can demonstrate to government that its duty has been satisfied, giving them an edge over the competition. Aboriginal communities will be more inclined to support development if they believe project proponents genuinely want to see them succeed in having their aspirations and interests met too.

edumine

EduMine has a number of fine courses that examine “working with indigenous people.”  Here are some extracts I cut and paste for your information.  If you are interested, I recommend the full courses. 

Ø     UN Definition:  Indigenous communities, peoples, and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop, and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.

Ø     Canadian Government Definition. "Indigenous" is variously described under assorted historical declarations and agreements, the Constitution, the Charter of Rights and Freedoms, the Indian Act, and the Nunavut Land Agreement. For instance, in the Constitution Act, 1982, Section 35, the term "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

Ø     Article 7  of ILO 169:. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programs for national and regional development, which may affect them directly.

From the EduMine course on Tools and Models for Community Engagement:  The Raglan Agreement: In 1995, following extensive community consultation work, Falconbridge signed the Raglan Agreement with the Makivik Corporation, which oversees the social and economic development of the Nunavik Territory. The Raglan Committee - comprised of representatives from Makivik Corporation, local Inuit villages and Falconbridge - meets regularly to discuss environmental concerns and to communicate progress on the status of the Raglan Agreement to its stakeholders. The Agreement gives priority to hiring and training qualified Inuit workers, and provides contracting opportunities for qualified Inuit enterprises. To date, contracts for open-pit mining and trucking have been awarded to Inuit enterprises. The Agreement also includes contributions and operational profit-sharing payments to an Inuit trust fund, which over 18 years could total more than $70 million. In 1997, Falconbridge was awarded the Quebec First Peoples Business Association's Grand Prize for its efforts in native employment, its support of Aboriginal businesses, and the development of the Raglan Agreement.

InfoMine Library

The InfoMine library has five publications on community relations, including the only one I think is really worth reading and implementing.  There are nineteen publications on indigenous.  I like that on Native Title in Australia.and Mining and Indigenous Peoples: Case Studies (it is worth the wait while it slowly downloads). 

Other Web Sources

Most lawyers will help you navigate the legal waters of mining and community relations, compliance with national law regarding native rights, and even international law. 

As always the Canadian government has a well-stocked site with information. 

International Law

The site Mining, Environment and Development is billed as the location of documents on mining and sustainable development from the United Nations and other organizations.  I went straight to the topic that fascinates me most, namely International Law and mining.  Here you will find that old stand-by, the International Cyanide Management Code for the Gold Mining Industry, the Kimberley Process Certification System for Rough Diamonds, and a new one to me, Mining, Environment and Development.  It subject:  international law and mining.  Here is a summation of the volume Mining, Environment and Development:

“Because environmental regulation is here to stay and bound to become more widely adopted, more stringent and better enforced, the winners in the division of share in the metals markets will not be those firms that avoid environmental control (only later to be forced to internalize the high cost of having done so), but will be those firms that were ahead of the game, those that played a role in changing the industry’s production parameters, and those that used their innovative capabilities to the competitive advantage.” 

My professor of jurisprudence questioned whether so-called international law was indeed law; it is not duly promulgated by any accepted regulatory body and there is nobody with the courts or police to enforce it and punish transgressors.  My professor of International Law of course claimed that international law is valid law in that it is a body of agreed conduct based on fundamental principles of moral and ethical conduct.

I know of no mining company that “obeys” international law in the same way as it obeys national and local laws.  But I do know of those shining examples where the miner acts in accordance with the moral and ethical principles that are set out by Marcos Orellana in his paper on Indigenous Peoples, Mining, and International Law.   Apart from the thorny issue of “who is indigenous?”, he makes a persuasive case that contemporary international law is evolving towards a recognition that indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, for a and fauna and other resources which they have traditionally owned or otherwise occupied and used. 

I worked for many years with the Navaho and Hopi in Arizona and New Mexico to remediate uranium mill tailings piles that were legacy from the atomic bomb development time.  We were not influenced by any notion of international law but were able to concentrate on meeting a simple national law that mandated a remediated pile stable for at least one thousand years.   My project colleagues from these two nations stood solidly behind this long design life.  

I was much disconcerted when I went to Spain to help close a uranium pile and they laughed at me for thinking 1,000 years a long time; for as my host pointed out, a Spaniard had been emperor of Rome at least two thousand years before, the bridge we were standing on was 1,600 years old, and the family in the 1,200 year old castle were still considered strange by the village for the count who built the castle threw his first wife from the tower the day after it was completed.  The indigenous Spanish villagers demanded a much longer design life than the Hopi or Navaho.  How would one establish an international norm for the design life of a closed mine-waste disposal facility in the face of these conflicting perspectives?