Over the last several years there has been considerable increase in mining exploration and activities within the CSTC territory. Both the province of BC and mining companies are investing in inventories and exploration of minerals. One of the many effects of the mountain pine beetle infestation include causing the foliage of forests to thin and/or disappear altogether. This has made the use of remote sensing technologies easier to determine what lies beneath the forest floor, which was difficult to assess previously. The experiences with mines and the mining industry for the CSTC communities have not been positive. Millions, if not billions, of dollars have left the CSTC communities with little or no benefits. There have also been many environmental issues regarding old and new mines, some of which will be mentioned in this section.
As new mines are being proposed throughout the CSTC territory, many of the old mines require considerable reclamation and healling. Some of the old mines that require reclamation include the following (some listed link to maps and/or additional information):
- Pinche Lake Mine (Mercury)
- Huckleberry Mine
- Endako Mine
- Kemess North
Like with all natural resource management areas, the communities of the CSTC require meaningful consultation and accommodation regarding mining activities within their territories.
Harvard Report: Bearing the Burden
Summary of Recommendations
Rich in mineral resources, the traditional lands of First Nations in British Columbia (B.C.) have been targets of Canada’s active mining industry. Mining provides important revenue for the province, so many people welcome it. It also, however, frequently interferes with First Nations’ use of their traditional lands and significantly harms the environment to which their culture is inextricably linked. B.C. mining laws provide some safeguards for First Nations and the environment, but they favor the industry they are intended to regulate and do not adequately institutionalize the special protections First Nations are entitled to under international and domestic law. While some First Nations have benefited from mining within their boundaries, in general, First Nations bear an unfair burden at every point in the mining process, from the registration of claims to exploration, production, and abandonment of closed sites. Urgent law reform is needed to shift at least some of that burden onto government and industry. Current law presumes that mining is an acceptable use of a piece of land, but the presumption should instead be that aboriginal rights require heightened scrutiny of mining activities. Reform should ensure more First Nations’ involvement in decision-making, increase environmental and cultural protection, and balance the potential benefits among all key stakeholders.
The experiences of Takla Lake First Nation, which is based in remote northern British Columbia, illustrate that the province’s mining laws are a problem in practice as well as on paper. While Takla has good relations with some mining companies, it has generally been ambivalent or even hostile to new projects. This attitude stems largely from the fact that community members feel excluded from the process that reviews proposals and inundated with mining claims and projects on their traditional territory. In addition, Takla—home to exploration sites, a major open-pit mine, and several abandoned operations—has seen the range of harms caused by different stages of mining. Members of Takla widely report destruction of habitat, a decrease in wildlife, and a fear of health problems from contaminants. Because of Takla’s close ties to the land, these effects cause cultural as well as environmental injury. Finally, even those members who are willing to accept mining say that they have not received the benefits that are supposed to accrue from the industry—in particular, revenue sharing and employment opportunities. Takla’s story—its experience with disenfranchisement and harms accompanied by few benefits— illustrates that the current legal regime needs reform to better preserve First Nations’ lands and culture.
The situation is particularly troublesome given that international and Canadian law require special protections for First Nations. Canada is party to international human rights and environmental treaties that recognize the unique connection between indigenous peoples and the land. First Nations have the right to self-determination, which includes the right to decide how their traditional lands and resources are used. They also have a right to practice their culture, which requires the use of traditional lands. Treaty law not only enumerates these rights but also obligates Canada to ensure First Nations are able to enjoy them. In addition, Canada has a duty under international environmental law to encourage sustainable development and protect the quality of its environment. The Canadian Constitution, meanwhile, establishes aboriginal rights at the domestic level, and a growing body of Canadian case law, notably the 2004 Haida Nation v. British Columbia decision, has strengthened the protection of First Nations by mandating consultation with and accommodation of the communities. Consultation and accommodation by the government mandate “good faith efforts to understand each other’s concerns and move to address them.”
International and constitutional standards thus provide a framework for the protection of First Nations that calls for heightened scrutiny of projects affecting these indigenous peoples and the incorporation of aboriginal rights into domestic mining law. The standards are designed to give First Nations a voice in decision-making through consultation and an assurance that the environment with which they are linked is healthy. B.C. mining laws on their face and in their implementation, however, fail to guarantee either. Harvard Law School’s International Human Rights Clinic (IHRC) has based this report on a field mission to Takla’s traditional territory and surrounding areas in September 2009 and follow-up research through May 2010. The IHRC team conducted at least fifty interviews with representatives of First Nations (especially Takla), the B.C. government, and the mining industry. During its field mission, the team made personal observations of the environmental damage that mining, including exploration, has caused in Takla’s traditional territory. It has also drawn on a range of legal sources for an extensive analysis of international and domestic aboriginal rights law and B.C.’s mining law.
After making recommendations to government, industry, and First Nations, this report expands on the issues laid out in the summary in greater depth. It opens with a background chapter about Takla and an overview of international and domestic aboriginal rights law. The report then analyzes the problems mining raise for First Nations in detail. It provides an extensive legal analysis of the existing mining regime. It also documents the situation of Takla, describing the band’s experiences with and opinions about lack of consultation, harms of mining, and lack of benefits. It concludes that structural, procedural, and substantive legal reforms are needed firmly to establish the heightened protections to which Takla is legally entitled and better to balance the burdens and benefits of mining.