First Nations form united front on mining concerns

Aboriginal communities across Canada are at the forefront of a campaign to end mining laws rooted in the 19th century view that mineral extraction is the best use of any land, and that governments' top priority is to facilitate exploration and mining.
The pressure is most intense in British Columbia and Ontario where a number of on-the-ground confrontations and ground-breaking court decisions have raised public awareness of issues like mine waste and Aboriginal rights.
The fundamental injustice is that provincial governments and the lower levels of the judicial system enforce legislation that is at odds with the Constitution and Supreme Court rulings, and it's left to Indigenous people to divert scarce resources to challenge the laws or, when the game gets too expensive, to give up their freedom.
In Ontario, the imprisonment of seven Aboriginal leaders who would not abide by court injunctions prohibiting protest against mining exploration led to widespread condemnation of the Ontario government.
The chief, four councillors and a member of Kitchenuhmaykoosib Inninuwug First Nation (the KI Six), served almost two months of a six-month jail sentence, and chief negotiator Bob Lovelace of the Ardoch Algonquin First Nation served four months. They were all eventually released by the Ontario court of appeal.
The appeal court ruling, written by Justice James MacPherson, described the province's mining act as a "remarkably sweeping law," based on a "free entry" system whereby all Crown lands are open for prospecting and staking, without any consultation required.
Justice MacPherson found that the opposition mounted by Lovelace and the KI Six, although in contempt of court orders, was grounded "at a minimum in a respectable interpretation of section 35 of the Constitution Act, 1982 and several recent decisions of the Supreme Court of Canada."
In B.C., 350 delegates representing 100 bands, tribal councils and Indigenous national organizations recently attended a three-day First Nations mining summit in Prince George.
"Our summit was driven by the need to find a way to incorporate successive court rulings on Aboriginal title and rights into B.C. mining laws, practices and activities in order to generate economic development that benefits everyone and respects the environment," said Grand Chief Edward John of the First Nations Summit political executive.
The delegates drafted a mining action plan, which is under review at the community level and won't be made public until it is ratified, a process that will take several months.
Perhaps as importantly, however, they forged a united front that will work to support Aboriginal communities when mining development occurs.
Dave Porter of the Kaska Dena Council co-chaired the mining summit. In B.C., the action to deal with mining concerns occurs on a number of fronts, because, as Porter sees it, respect for the law seems to be a selective matter.
"Even when government loses these legal cases they are reluctant to act. Their first response is usually to appeal and, once they've launched the appeal process, then their excuse is 'we can't deal with this issue as it is before the courts.'"
In B.C., as in Ontario, an end to free entry is a high priority for mining legislation critics. This is the cornerstone principle that gives the industry privileged access to Crown land, much of which is also the traditional territory of Indigenous peoples.
While elsewhere in Canada, a prospector actually has to mark a claim on the ground, in B.C., free entry is particularly pernicious because since 2005 the province has allowed online staking of claims. All that's needed is a computer and a credit card.
"We take the point of view," Porter said, "that the case law clearly indicates that Aboriginal rights should take precedence over the sections of the Mining Act that give legal rights to folks sitting at home on their computer and alienating, by way of staking claims, portions of our traditional territories."
Representatives of government and the mining industry were present on the first day of the mining summit, but Porter said they didn't indicate what their position will be on the changes being sought by First Nations.
The B.C. legislature isn't sitting this fall and there's a set election date next May, so Porter doesn't expect to see legislative change for a year. Meanwhile, the outdated mining regulations set up ever-increasing opportunities for conflict, and missed opportunities for industry and Indigenous people alike.
One building flashpoint is the Taseko Mines' Prosperity gold-copper project in Xeni Gwet'in territory. Chief Marilyn Baptiste said the band was working in good faith with Taseko on an independent joint panel review process.
"Our people were bringing forth their questions and concerns," she said, "and we were hoping to have the questions and concerns answered, along with baseline studies."
But in July the federal and provincial governments unilaterally abandoned the joint panel review, switching to a BC.-led environmental assessment that does not involve the same level of consultation and openness.
Part of Taseko's huge Prosperity project is a reclassification of Teztan Biny (Fish Lake) so it can be used for toxic mine waste ­ something that is unacceptable to the Xeni Gwet'in. This has been made possible by a 2002 change to the federal Fisheries Act that allows lakes and other freshwater bodies to be reclassified as "tailings impoundment areas," thereby circumventing a long-standing prohibition against polluting fish habitat.
The BC First Nations Leadership Council has issued a statement of support for the Xeni Gwet'in in their fight to preserve Fish Lake.
"As a matter of public policy, all Canadians and First Nations alike should be concerned about the destruction of natural water bodies for mining waste," the council said in a news release.
Back in Ontario, the provincial government has launched a public consultation process for review of its mining act, one that KI Chief Donny Morris decried as woefully narrow in scope
"Mining is a threat to our existence as Indigenous peoples because we are one with the land," Morris told a press conference at the Ontario legislature in October.
Ontario's minister of northern development and mines, who is in charge of the legislation, lacks the capacity to address Aboriginal and treaty rights issues that encompass, among other matters, environmental standards, health and land use planning, Morris said.