Commentary: Harvard Law School responds to AME BC letter re. First Nations report

In June 2010, Harvard Law School’s International Human Rights Clinic released a report entitled Bearing the Burden: The Effects of Mining on First Nations in British Columbia, which is available at http://www.law.harvard.edu/programs/hrp/news/First_Nations.html .

The report calls for government and industry to recognize the special protections First Nations are entitled to under Canadian and international aboriginal rights law when reviewing or conducting mining activities.

In the Oct. 11-17, 2010 edition of The Northern Miner, the Association for Mining Exploration British Columbia published a letter regarding the report under the headline “AME BC responds to Harvard report on First Nations in B.C.” The International Human Rights Clinic has in turn responded to AME BC in the letter below:

Thank you for your response to Bearing the Burden and your offer to engage on the report further. We are writing to address some of the concerns you raised in your letter and to propose a phone call to continue the conversation. We would be happy to discuss our recommendations for First Nations as you requested. We would also be interested to hear your thoughts regarding the recommendations we offered for industry and government.

With respect to your comments regarding aboriginal rights protections, we believe there is common ground in your letter and our report. We agree that compared to their historical treatment of First Nations, the Canadian and provincial governments and industry have in recent years taken important steps to recognize First Nations’ rights and interests.

Nevertheless, the effort to institutionalize rights protection and its consistent application in all contexts for all First Nations remains a work in progress.

As we explain in detail in Chapter 4 of our report, for example, constitutional jurisprudence provides a valuable broad framework for the protection of First Nations; it requires heightened scrutiny of certain projects affecting indigenous peoples and mandates consultation and accommodation in those cases.

British Columbia’s mining laws both on their face and in their implementation, however, fail to meet these constitutional aboriginal rights standards. In addition, the standards lack clarity about what consultation and accommodation specifically mean in the mining context.

Statutory or regulatory reform could address these shortcomings and provide consistency in the mining context that ensures heightened protections for all First Nations.

We believe industry would welcome the clarity that would come with legal reform so that all companies know what is required to carry out projects in the future.

We also note your concern that we focus on only one of the First Nations in British Columbia. Chapter 5 of our report analyzes in depth why B.C. mining laws do not protect First Nations’ rights generally.

We examined Takla’s experiences closely as a case study to show the problems of British Columbia’s mining laws exist not only on paper (as argued in Chapter 5) but also in practice. Takla’s situation helps illustrate the actual impact of these failures because the community’s territory is particularly rich in minerals and has been affected by all stages of the mining process.

We recognize that different First Nations have distinct cultures, experiences, and views towards mining. Indeed, as noted in the report, there are also differences of opinion within a given community. This diversity of opinion is one of the challenges moving forward, yet in no way undermines the basic conclusion that all First Nations deserve consistent, transparent, and predictable rights protection.

The news of British Columbia’s two recent revenue-sharing agreements is encouraging, although such agreements are only available for new mines. We are also interested in the initial positive reports of an exploration-access agreement between Takla and Serengeti and hope to learn more about it.

Our soon-to-be printed, updated and final version of the report mentions these developments. These innovations represent potential advances that could serve as models for other initiatives.

They should not be ad hoc, however, but systematic and mandated with clarity at all stages of the mining process.

Our report’s recommendations call for First Nations, industry, and government all to facilitate implementation of aboriginal rights in the mining context , and we would welcome the opportunity to discuss these recommendations with you further. We look forward to continuing our dialogue.

– The author is a lecturer and clinical instructor at Harvard Law School’s International Human Rights Clinic in Cambridge, Mass. http://www.law.harvard.edu