Indian Mining Rights are Powerful, Yet Vague
By Greg Klein
“We’re sure trying hard to have discussions,” says Brian Battison, VP of Corporate Affairs for Taseko Mines Ltd TSX:TKO. “We’re having discussions with two native bands, the Canoe and the Esketemc. The TNG [Tsilhqot'in National Government, which represents five bands totalling about 3,100 people], however, refuses to talk with us despite repeated offers from us to talk about the project and let us answer questions.”
The discussions, were they to occur, would concern Taseko’s New Prosperity gold-copper project, a $1.1-billion mine proposed for south-central British Columbia. A previous proposal met BC’s environmental review only to be rejected in November 2010 by the federal Canadian Environmental Assessment Agency. Now a revised proposal has come before the CEAA. The agency will decide by November 7 whether to accept New Prosperity as is or spend up to 12 months on another study. That’s the latest step in a project that began its environmental permitting process in 1993 and has so far cost Taseko over $110 million. If approved, New Prosperity may advance to the permitting needed to begin construction.
Central to the CEAA’s 2010 decision was the 118-hectare Fish Lake, which would have been converted to a tailings pond. But New Prosperity, Battison maintains, addresses that issue. “There’s one significant change that leads to some other changes. Fish Lake, under the previous proposal, would have been drained and eliminated. Under the new proposal, Fish Lake is retained.” The tailings pond will be relocated two kilometres upstream.
TNG chairperson Joe Alphonse says that Taseko had earlier rejected that option as “worse than the first.” Battison disagrees. “There were three alternative options in the previous environmental assessment. But only one option was advanced because the other two were not economic.” Higher metal prices have made the extra $300-million cost viable, he says. “Now the lake is retained and the discussion comes down to, ‘What are the potential effects of having the lake and the mine in the same watershed?’”
Disastrous, according to Alphonse. “We put a lot into our way of life, and we have to continue to do what we can to protect that,” he says. “We have the largest sockeye run in North America, the Chilco Lake run. We may not have the biggest run, but we have probably the most consistent sockeye run. We get over a million fish that return to spawn. This development isn’t very far from that location. It’s above Taseko Lake, which feeds into the Taseko River and the Taseko feeds into the Chilco. So we have big concerns about that.”
His concerns are echoed by Marylin Baptiste, chief of the TNG’s Xeni Gwet’in Band. They’re not, however, borne out by last year’s CEAA report. With Fish Lake converted to a tailings pond, the study did find the project “would have a significant adverse effect on fish and fish habitat in the Teztan Yeqox (Fish Creek) watershed.” But it “would not result in a significant adverse effect on fish health in the Dasiqox (Taseko River).”
Nor did the study find a significant adverse affect on surface water hydrology, surface water quality, water quality in Jidizay Biny (Big Onion Lake), terrain and soils, old growth forest, grassland ecosystems, mule deer and moose and their habitat, the forest industry, meadows in the Fish Creek watershed, ranching and grazing along the transmission corridor, hunting and a list of other items.
Apart from Fish Lake, the study also found a significant adverse effect on the South Chilcotin grizzly population but not other wildlife. Although the study found other drawbacks, few of them were environmental. Instead, it found a significant adverse effect on established Tsilhqot’in rights, potential rights to fish in Fish Lake, potential Tsilhqot’in, Esketemc and Canoe title, and Tsilhqot’in traditional and cultural uses.
The report’s executive summary describes Fish Lake as “a place of spiritual power and healing for the Tsilhqot’in,” a sentiment the CEAA panel says it heard during 30 days of public hearings.
“The review overstepped its boundaries,” claims John Cummins, who represented Delta-Richmond for 18 years in the House of Commons and now leads the fledgling BC Conservative Party. “It wasn’t just an environmental review; it turned into a review of aboriginal rights. It’s beyond their authority and expertise.”
Cummins says that natives want more than hunting and fishing. “They want new pickup trucks, TV sets, nice warm homes with hot water, and you’re not going to get that with subsistence living. You need jobs.”
We put a lot into our way of life, and we have to continue to do what we can to protect that —Joe Alphonse
But Baptiste scorns the economic projections. “Do you really, honestly and seriously think that this project, which is $1.1 billion, will bring 71,000 jobs?” She points out that the federal government projects only 15,000 jobs over 30 years from its $25-billion shipbuilding program in Halifax.
But an even more important issue is one that is hardly even broached. Cummins maintains that aboriginal title doesn’t exist. “The Supreme Court of BC made it clear that aboriginal title had been extinguished when the province exerted control over the territory.” He says the federal Supreme Court’s Delgamuukw decision “gave the test on what constituted aboriginal title. Those tests have never been challenged by a native band from British Columbia, but they were challenged in Nova Scotia and New Brunswick. The Supreme Court of Canada decision in Marshall and Bernard made it clear that to establish aboriginal title was very, very difficult, and in fact it would be unlikely that most bands would be able to support aboriginal title to their current village.” The decision did, however, acknowledge rights to hunt and fish, Cummins says.
However, according to Cummins, governments “are acting as if aboriginal title existed. They’re acting as if the aboriginal folks have final say over resource development in this province, and it’s perfectly normal for them to give a payoff to native bands whenever there’s any resource development. These payoffs—and essentially they’re little more than payoffs or protection money—are creating expectations that we can ill afford to keep.”
The only solution, Cummins declares, “is for federal and provincial governments to stand up to the unreal expectations they’ve created.”
Despite his resource-friendly views, Cummins is unlikely to win the support of mining companies since, as his former colleague Preston Manning has pointed out, the BC Conservatives could take enough votes from the ruling BC Liberals to allow a New Democratic Party victory in 2013. NDP policies are often blamed for the near-destruction of BC’s mining industry when the party held office from 1991 to 2001.
Meanwhile the Tsilhqot’in National Government and Taseko remain at loggerheads. Baptiste says the company’s CEO sent letters to the TNG chiefs asking for a meeting. They responded “asking for certain things,” she says. “Those things were ignored, so we did not meet.” She didn’t recall what they were. “I don’t have that in front of me at the very moment.”
Alphonse says, “We’ve been dealing with [Taseko] for the last 20 years. This is the third time they’ve tried to get this mine through.” He compares the company to “a spoiled little kid not accepting a decision” and says the TNG will fight the project in court if necessary.
Last September, an assembly of the Union of BC Indian Chiefs called on the federal government to reject Taseko’s proposal, advising governments that “First Nations across Canada are watching their decisions to see whether there remains any value or integrity in environmental assessments for major projects, or whether First Nations must turn to litigation and other means to assert our rights and protect our cultures.”
In September, Black Press quoted Union of B.C. Indian Chiefs president Stewart Phillip warning the federal government not to approve New Prosperity: “It will trigger a province-wide and nation-wide backlash that will severely jeopardize relationships between First Nations and the mining industry for years to come.”
At press time, Phillip was part of an aboriginal delegation to China, which will speak with companies interested in BC resource development. Another delegate, Grand Chief Edward John of the First Nations Summit, told the Victoria Times Colonist, “We are going to be telling them that they don’t just talk to government, they talk to us.”