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Treaties, Mining and International Law 

 
Authors: Jack Caldwell

Summary

This review discusses the issues relevant to the mining industry associated with the rights and responsibilities mining companies have towards indigenous peoples (sometimes called natives, aboriginals, first nations, tribes, or more correctly by the name they use for themselveswhich differs from place to place.) This review starts with a review of Canadian law that relates to the sanctity of treaties and the legal conclusion that these treaties are in essence still in effect and should be the basis for ongoing land claims, many of which affect the mining industry in staking title and developing mines. This review also examines similar issues and approaches in jurisdictions ranging from South Africa to South America.

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 its 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 Mtis 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, were all here to stay, there is an ongoing duty to reconcile our sovereignty with the pre-existence of theirs. The Courts prescription for achieving reconciliation is for parties to negotiate the evolving nature of the relationship. Arbitrarily imposing on each others 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 isnt 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 wont 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.

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