Aboriginal Peoples and Mining in Canada: Six Case Studies

Prepared for MiningWatch Canada
by Christine Cleghorn
September, 1999

Executive Summary

The six case studies presented in this document provide an overview of how aboriginal communities have come to terms with mining and mineral exploration in their territories. Each case study includes a brief summary of the project or problem, followed by a description of how it is being addressed, and then concludes with lessons learned. Case studies about the Innu Nation, the Lutsel K'e Dene First Nation, the Tahltan First Nation, the Little Salmon Carmacks First Nation, Makivik Corporation, and the Nishnawbi-Aski Nation are presented.

Lessons learned range from pointers on establishing harmonized environmental assessment processes to impact and benefit agreements to making the time and resource demands of dealing with the mineral industry manageable for small aboriginal governments. While the cases presented are not without their problems, much can be learned from their examples.

Introduction

It has been recognized that mines bring rapid change to communities. For aboriginal communities, mining and mineral exploration can bring opportunities for economic development, jobs and training. On the other hand, it can also bring environmental degradation, change the way people use the land, and make cultural change when people work in wage employment at the mine and are away from their families and the land for long periods of time.

The following seven case studies show how aboriginal communities from across Canada have responded and reacted to the mining industry in their territory. While each community is unique, there are broad lessons which other communities may find useful and helpful to apply in their own situation.

The case studies were developed with (in some cases written by) staff and community members of each community. Each case study presents their perspective about how they have come to terms with the maze of issues related to mining and mineral exploration. The cases are presented in the spirit of learning, so that other aboriginal communities can take what they need from each case study, learn from each others' mistakes and strengths, and apply what is useful in their own situation.

Case Study #1: The Innu Nation and Inco's Voisey's Bay Nickel Mine/Mill

Nineteen-ninety-four was a year that brought dramatic change to the Labrador landscape, and to the lives of the 1500 Innu people there. That year, two diamond-seeking geologists were heading back to the base camp after a day's work when they stumbled across a rusty outcrop on a small hill just north of Voisey's Bay. What they had tripped over turned out to be one of the world's richest nickel, copper and cobalt finds, located only 79km northwest of the Innu community of Utshimassits and in the heart of Innu territory. The find was on land shared by Inuit and Innu people, and was located only 35km from the Inuit community of Nain.

The massive sulphide deposit was discovered by the Newfoundland prospecting company Archean Resources Limited while under contract to Diamond Fields Resources (DFR) of Vancouver, a penny stock company partly owned by Robert Friedland. As the enormous size of the deposit came clear, DFR then found itself in a major bidding war over the rights to mine the ores. Toronto-based Inco Ltd., finally won the bidding over its rival Falconbridge, with a $4.3 billion price tag for the deposit in 1996. Inco took over the Voisey's Bay Nickel Company Limited (VBNC) of St. John's, Newfoundland, as a wholly owned subsidiary and mandated it to continue exploration of the massive mineral deposit and to develop and manage a mine and mill operation at the site.

VBNC currently estimates that 150 million tonnes of mineral resource will be developed as part of the project. Based on present knowledge of mineral resources at Voisey's Bay, three primary mineralized areas will be developed: the Ovoid, the Eastern Deeps, and the Western Extension, now called the Reid Brooke Zone. These zones have different characteristics and require different mining methods. The Ovoid deposit is located near the surface which allows it to be mined as an open pit. Eastern Deeps and the Western Extension however, lie well below the surface thus requiring the use of underground mining methods.

The ore to be extracted from the open pit and underground mines will be processed into concentrates at a mill located at Voisey's Bay. The main components of the project are 50 km of gravel roads, a port facility, an airstrip, an accommodation complex, sewage treatment facility, diesel generating plant, mill, warehouses and office facilities. Mining facilities will include mine rock and overburden storage areas, and a tailings disposal area. The mill was originally designed to operate at a rate of 20,000 tonnes per day, although the present plan calls for a 6,000 tpd mill, to be expanded at a later date. The open pit will be approximately 500 metres wide, 1 km long, and 125 metres deep. Construction and other pre-production activities will generate 7,400 person years of employment. The open pit phase will generate about $1.1 billion in earned incomes and approximately 19,000 person years of employment. During the underground mining phase, it is estimated that 53,000 person-years of employment will be created and about $2.7 billion of income generated (VBNC EIS, 1997).

The find also kicked off an exploration boom that left its stamp on Innu territory in the form of base camps, cut lines, and fuel caches. In 1995 alone more than 250,000 claims were staked, covering nearly half the vast Innu territory. Today that boom has waned, but its legacy continues in the form of abandoned camps that resemble garbage dumps, and camps that have been sold to outfitting companies to use as satellite camps for sport hunters.

The site of the mine and the staked claims area is a place that has been home to the Innu and Inuit for thousands of years. Archaeological work has found evidence of Maritime Archaic habitation (early ancestors to the present-day Innu) dating back 7,000 years before the present, and more that 125 sites attesting to Innu and Inuit use of the area right up to the present-day. People in Utshimassits (Davis Inlet) and Sheshatshiu were upset by the mineral exploration on their lands, and even more upset at the prospect of a huge mine development going ahead without their consent, in the absence of a land rights agreement, and without an impacts and benefits agreement.

As this was the first time that the Innu had faced these issues, Innu Nation leadership sought a mandate from the communities to take to the mining and exploration companies. A task force was established and the community was provided with a forum to discuss the issues of mining on Innu lands, the potential economic development opportunities, the probable environmental degradation, and the absence of a land rights agreement. The result of the task force, a report titled Between a Rock and a Hard Place (available on the Innu Nation web page at www.innu.ca) was a clear mandate to the leaders. This stated that Innu people did not want any mining developments until a land claim agreement was signed. The people also said they would not consent to any mining developments without an impact and benefits agreement with the mining company involved, and finally that in order to weigh these impacts and benefits the project would need to undergo environmental assessment.

At the same time as the task force was going on, the Canadian and Newfoundland governments began discussions about harmonizing their environmental assessment (EA) processes. Shortly thereafter, it was recognized that the location of the project was within an area subject to ongoing land rights negotiations between the Innu Nation and provincial and federal governments, and the Labrador Inuit Association (LIA) and the provincial and federal governments. To ensure that the EA process would reflect the local political landscape, the four parties entered into negotiations which culminated in the signing of a four-party Memorandum of Understanding (MOU) in January 1997.

The MOU broke new ground in several important areas of significance to the Innu and Inuit. For example, under the Canadian Environmental Assessment Act, the definition of "environment" reads:

"environment" means the components of the Earth, and includes

(a) land, water and air, including all the layers of the atmosphere,

(b) all organic and inorganic matter and living organisms, and

(c) the interacting natural systems that include components referred to in paragraphs (a) and (b)

(Bill – -13, Section 2:2)

In the MOU, the definition of environment reads:

"Environment" means the components of the earth and includes

(a) land, water and air, including all layers of the atmosphere,

(b) all organic and inorganic matter and living organisms,

(c) the social, economic, recreational, cultural, spiritual, and aesthetic conditions and factors that influence the life of humans and communities, and

(d) a part or combination of those things referred to in paragraphs (a) to (c) and the interrelationships between two or more of them. (MOU, 1997)

The MOU took local conditions into account in that it involved an expanded definition of environment that forced the proponent to consider these aspects which it might not otherwise have dealt with. It also required that the Panel make its recommendations not only to the responsible Minister, but to the President of the Innu Nation, the President of the LIA, and the Provincial and the Federal Ministers. The MOU was vague as to what will happen in the event that the four parties disagreed about accepting the Panel's recommendations.

An important aspect of the MOU for Innu Nation was that it ensured that the parties to the MOU appointed the Panel members. This was negotiated into the MOU by Innu and Inuit negotiators and was one of the biggest assets of the MOU. It was important for the Innu and Inuit to have a say in the composition of the Panel, so that they would be satisfied that the Panel was credible. During the environmental assessment for the Low Level Military Flight Training Panel in the 1980s, the Innu had seen the impacts of a weak panel with a weak mandate, and were not about to play this game again. Although conducting the environmental assessment took over two years, the Panel was married to a very strict timetable that was prescribed in the MOU. This included only 45 days to complete the public hearings and 90 days to release their final report.

The communities also sent clear messages to the leadership about how they wanted social and economic baseline work conducted for the environmental assessment. While acknowledging that this information would be necessary for the environmental assessment process, they also encouraged the leadership to find ways for the community to control as much of the process as they could. The end result was the Innu Nation taking control of the social and economic studies, by entering into a contractual agreement with VBNC. The goal was to produce a video documentary made by Innu people which would act as a visioning tool for the community while helping the environmental assessment panel understand what kinds of impacts the communities were already feeling from other developments. The end result, Ntapueu (I speak the truth), is a tool that is more meaningful to the communities than paper reports that sit on a shelf, and conveyed a powerful message to the Panel.

But having the MOU in place did not mean that the Innu and Inuit could be certain that the project would undergo comprehensive environmental assessment. While VBNC prepared its Environmental Impact Statement, they also wanted to push ahead with what they called "Advanced Exploration Works" at Voisey's Bay. This included an airstrip, a road and a dock which would be used to support exploration crews undertaking to further delineate the ore body. The Innu and Inuit strongly felt that building a road, an airstrip, and a dock was out of the question. First, the environmental impacts of the so-called advanced exploration works would never be assessed, and the presence of the advanced works would prejudice the environmental assessment; what if the panel recommended putting the airstrip somewhere else? Or not having an airstrip at all? In the end, the Innu and Inuit took the province of Newfoundland, which had issued the permits in the first place, to court. The court agreed with the Innu and Inuit, and the advanced exploration work ground to a halt.

During the public hearings, Innu Nation hammered on three points, namely that Innu would not consent to the project without a land rights agreement in place prior to permitting, secondly that the Innu would not consent to the project without an Impacts and Benefits Agreement in place, and finally that the proponent's failure to explore alternatives to the mine plan made assessment impossible.

The panel's report, released several months after the completion of the hearings, included 107 recommendations. The panel recommended that the project move ahead to permitting, but only after the conclusion of land rights negotiations and after IBAs had been achieved with both the Innu and the Inuit. The Innu were pleased at the panel's recommendations and heralded the report as a major step forward for EA and aboriginal rights in Canada.

Developments since the Panel report's release have been less than encouraging however. In publicly released position papers on the recommendations, both the federal and Newfoundland governments gave the project the green light to go to the permitting stage, in the absence of land rights agreements or IBAs. The Innu and Inuit are left, after 6 years of dealing with the proposed mine, and 2 years of environmental assessment, with little more than they had in 1994, except disappointment and shattered expectations. On September 3, 1999 the Innu Nation filed court action, asking the courts to quash the federal government's decision since proper consultation was not carried out between the four parties, and to rule that the government could require Voisey's Bay Nickel Company to complete impact and benefit agreements with both aboriginal groups as a mitigation measure, prior to permitting the project. In the bigger picture, the Innu are asking the courts to recognize that the public process of environmental assessment is not window dressing for development, but that the government must take very seriously the Panel's recommendations. The Innu are saying that the government does not have the right to make political decisions and ignore the panel's clear recommendations.

As for mineral exploration, the pace has slowed considerably since the boom of the mid-1990s. Innu Nation developed specific guidelines of conduct for companies operating in Innu Territory, and these guidelines can now be enforced due to threats from protests and legal action, and the panel recommendations on land rights and IBAs. An exploration company in the advanced stages of exploration (Donner Minerals Ltd.) was recently evicted from Innu land for failing to recognise Innu rights.

Lessons Learned:

• The MOU was worthwhile in making the EA process credible to people in the community. In the future, a legal definition of consultation would be valuable in ensuring that when the four parties came together to discuss the panel's recommendations, the playing field would be more level.
• Taking control of the social and economic baseline studies empowered Innu people and ensured that the communities participated fully in the EA process.
• Political strength gained from dealing with VBNC was used in other areas, such as speeding up negotiations on land rights and programs and services.
• Slowing down the pace of development through protests and legal action helped make fighting the mine more manageable.
• Hiring good experts to present to the panel is key in getting good recommendations. Pooling resources with other groups and fund-raising from different sources was time well spent.
• Effective public participation in community hearings is equally important. During the public hearings it was clear to the panel that people understood the project, its potential impacts, and were clear on what different technical experts had recommended to the Innu Nation. This gave credibility to Innu experts, Innu Nation, and to people's concerns in the eyes of the panel.

With thanks to Kevin Head, Innu Nation

Case Study #2: Lutsel K'e Dene First Nation and BHP Diamonds Inc.

The Ekati diamond mine is located in the Northwest Territories, just 300 km Northeast of Yellowknife. This land is the territory of the Lutsel K'e Dene First Nation although it is controlled by the federal government. In the absence of a land rights agreement, the Dene have been dealing with mineral exploration and mining operations for too long. In 1991 diamonds were discovered by BHP and Dia Met, a joint venture which had been formed only a year before. Over the next 9 years, the Dene witnessed an unprecedented mineral staking rush, and the development of the Ekati diamond mine. At the end of April, 1999, the total production from Ekati reached 1 million carats. The environmental assessment process for Diavik, another mine located very close to the Ekati mine, is underway. Although the exploration rush has calmed somewhat since the early 1990s, the legacy of that boom remains; and the Dene continue to deal with the issues created by mining and mineral exploration.

The Ekati mine has been in the operations phase since last year. Lutsel K'e Dene First Nation signed an Impact and Benefit Agreement with BHP just after the environmental review process before the project was completed. Although the intent of the agreement was to ensure that those communities closest to the project would benefit from it, Lutsel K'e Dene First Nation have actively pursued monitoring and research at the community level to ensure that the impacts on their community of industrialization do not go unchecked. This case study explores how the Lutsel K'e Dene First Nation conduct this research and monitoring.

Early in the study it was identified that the monitoring had to be grounded in the priorities of the community. The study grew partly out of the momentum that built up during the environmental assessment process for the mine, as to what appropriate monitoring mechanisms for the mine would be. Naturally, the community priorities and those of the mining company and government do not always match. Although this could have been a considerable obstacle in the monitoring, it has not been. Instead, the community is proceeding with the monitoring that it has determined is the most important, while the company is doing the same. In some areas, such as water quality for example, both parties agreed that monitoring would be necessary. In some ways, the differences in monitoring are essentially differences of scale; the difference between monitoring phytoplankton instead of monitoring healing practices for example.

The studies are funded through the West Kitikmeot/Slave Study, which is partially funded by DIAND. Over three years, the community has undertaken three major studies, namely, The Community-Based Monitoring Project (1996), Traditional Knowledge Study on Community Health (1997), and Community-Based Monitoring Cycle Three (1998).

The goal of the first study, the Community Based Monitoring Project, was to design a tool that would increase the capacity of Lutsel K'e Dene First Nation and other northern communities to address both the positive and negative effects of mineral development. The project consisted of three phases:

1. gathering ideas and Chipewyan terminology for concepts like monitoring, indicators, and community health.
2. development of themes and indicators of community health
3. a four-step process of monitoring was designed to include;

• gathering information
• summarizing information and communication
• evaluation of information with a committee
• reporting.

The Traditional Knowledge Study on Community Health involved documenting traditional knowledge about community health or the Dene way of life (Dene ch'anie) as it was defined in the first study. Elders were interviewed about a range of indicators or issues which they defined as important including:

• healing practices
• individual mental, physical and emotional well-being
• nutrition
• parenting and families
• children and youth involvement in the community
• alcohol, gambling and family violence
• leadership
• togetherness
• respect

Information from this study was used in designing the monitoring. Following this study, the model for Community based Monitoring was implemented. Since 1997, Lutsel K'e researchers have been collecting information on specific indicators, and comparing them with the results of the 1997 study.

The studies are conducted by the Lands and Wildlife Committee, which has members from the community's youth committee, elders committee, and band council. Each member of the Lands and Wildlife Committee is expected to go back to their original committee (such as the youth committee) and keep them informed about the research and monitoring. In this way the community stays informed, although public meetings are held as necessary.

Employment at the site has fluctuated over its short life. In 1997, 22 people from Lutsel K'e were reported as employed in the mining sector, while six months later only three people were still working there. Low wages, no overtime, little room for advancement, no native food, and concern about environmental hazards were given as reasons for this flux in employment.

The Local Employment officer listed the following obstacles facing Lutsel K'e Dene Band members pursuing jobs at the mine:

• lack of job readiness
• inadequate training and development programs
• drug and alcohol problems
• lack of local resource people able to assist in business development
• limited capacity for investment in business development
• lack of infrastructure to support business development.

The Employment Officer suggested that a five stage "Comprehensive Training Strategy" would be a good way to address these problems. The stages are:

• Life Skills and Job Readiness
• Adult Upgrading
• Pre-Employment Training
• On-The-Job Training
• Career Development.

Traditional food consumption has been monitored for two years. It is not yet known if the level of traditional food consumption has been affected by mineral development, although further monitoring in late 1999 will likely reveal whether or not there has been any real change. A baseline for late summer and winter consumption levels has now been established.

Preliminary monitoring results about the impacts of industrial development projects are also available. Although the potential effects of industrial developments may not be well understood by the scientific community, or may be regarded as insignificant by government and industry, the cumulative effects of many industrial developments may be gigantic. These potential effects and cumulative effects are the cause of great anxiety for members of the Lutsel K'e Dene First Nation. This leads to greater stress on the community as a whole. This anxiety should be recognized as an impact on the Dene way of life.

Lessons learned from this style of community participation include:

1. The independent monitoring agency established to look at the impacts of the mine is not mandated to examine anything outside of those environmental impacts. A forum is needed to bring together all of the studies which are being carried out, and discuss them in a meaningful way
2. Because the community is focused on their own issues and their own priorities, monitoring the impacts from the mine specifically is not necessarily being carried out. This does not rule out future monitoring which will more closely relate to the mining project, but means that drawing the links between cause and effect and relating them to the mine may be more difficult.
3. There were some funds set aside in the IBA to deal with impacts on the traditional economy. The community has taken on a lot of responsibility for the changes in lifestyle that come with wage employment and as a result these impacts are being fed into the monitoring. However, BHP is very inflexible when it comes to linking the mining project to the impacts, especially where those impacts exceed what was predicted.

With thanks to Brenda Parlee, Lutsel K'e Dene First Nation

Case Study #3: Tahltan First Nation, the Mining Industry, and Environmental Assessment

Working with the mining industry and the associated environmental assessment issues is not new for the Tahltan. They have been formally engaged with the mine approval/development process for over ten years.

The Tahltan Nation is located in the Northwest portion of B.C. and its traditional boundaries encompass 96,000 sq. miles. Their total population is approximately 1,350. Roughly five hundred Tahltans live within the traditional boundaries. The territory is rich in mineral values and has been referred to as the "golden triangle" within the mining and investment communities.

The Tahltan approach to mining has been pragmatic and consistent. The Tahltan have based all their decisions and negotiations on a set of Tahltan Development Principles established in the 1980's.

Those development principles stated the Tahltan fully intend to have substantive participation in the development of natural resources within their territory, without adversely affecting the environment and other land values which significantly define their aboriginal rights traditional use of the land.

With over ten years of dealing with mining exploration, mining promotions, large scale mine development and operational/environmental management issues, the Tahltan have built the capacity for dealing directly and proactively with mining companies. This same relationship has been developed with the provincial and federal government.

This case study explores the Tahltan model of technical assessment, cultural integration and environmental response to mining issues through the Tahltan Advisory Group on Mining (TAG).

The Tahltan First Nation consists of three communities: Telegraph Creek, Iskut, and Dease Lake, located in a 400 km radius of each other. The leadership (Chiefs and Councils) is located in Telegraph Creek and Iskut while Dease is the central location for the Tahltan Development Corporation and the Land Use office.

All three communities work together as a matter of policy since many mine companies have attempted the "divide and conquer" approach in the past by creating divisions within the communities, particularly when a mining interest is located closer to one community then another.

In the early years, mining negotiations with the mines were primarily conducted by the Tahltan Tribal Council and the Tahltan Development Corporation. However this approach tended to disenfranchise the Chiefs and Councils resulting in an unproductive level of distrust and poor communication between the various Tahltan organizations.

The Tahltan have learned when dealing with major issues such as land use planning and resource development projects, they must speak with one voice — not many whispers. They are also committed to delivering decisions and recommendations which are based on their development principles and complete technical assessments.

The work related to mining issues is time consuming and demanding. The average First Nation Local Government office is not equipped to realistically respond to the various technical reports, government referrals and inflexible timelines. The successful format requires realistic levels of fiscal capacity, technical knowledge and reasonable timelines which allow for community consultation. These elements are required to ensure for timely and thorough completion of technical assessment work.

The Tahltan Advisory Group on Mining was created to handle the workload and issues referred to above and provide an informed linkage to the Tahltan leadership. This linkage assists and facilitates the decision making process with the Chiefs and Councils and offers technical support in the community consultation process at key stages.

The TAG group is supported by the Band Councils including support funding on a project by project basis from the BC Environmental Office, the Canadian Environmental Assessment Agency/DIAND and in some rare cases, the proponent themselves.

The TAG group is comprised of at least one Councillor from each community to ensure information is getting back to the community, two Tahltans with related specialized knowledge (i.e. Tahltan Development Corp.) and two non-Tahltan technical advisors. Each chief has an "open" seat, subject to their interest in the agenda or their availability.

All land use planning and environmental planning activities are handled from the centralized Land Use Office in Dease Lake which builds the agenda, provides the support documents, coordinates the meeting and follow through on subsequent work. A balance between the communities and a diversity of viewpoints and expertise are encouraged. All work produced is transparent and written records are kept for review and distribution if necessary.

TAG is responsible for all mine-related assessments, including operational monitoring, reclamation and closure planning. The technical group must account for deliverables/timelines and ensure the Tahltan leadership is well informed regarding options, recommendations and final decisions.

Regularly scheduled meetings with the mining companies and government ministries ensure that the lines of communications are open. Packages of summary evaluations and impact assessments provide the leadership and their communities with overviews on the various mine projects.

By engaging in all aspects of mine related issues and processes including the BC Northwest Mine Development Review Committee, the Tahltan have been able to maintain a pro-active approach and not simply react to the government and industry processes. Political, cultural, environmental and economic priorities are integrated into every TAG meeting. This encourages capacity building in all areas of interest.

The Tahltan Joint Councils are also involved in policy forums at the provincial level. They are active members of the BC Environmental Assessment Office Aboriginal Advisory Committee that deals with mine development assessment procedures. Provincial and federal policy framework directly affects a First Nation's ability to complete their mandate.

TAG Meetings are only called when there is a full agenda so as not to unduly "burn out" the participants. The meetings also provide an opportunity to do "rumour check" because as we have learned, the industry is fuelled on rumours. Basically, TAG is working because it has built a reputation for open communication, detailed technical evaluations and delivering a product or a decision on a timely basis. Members are often assigned tasks between meetings to keep the momentum of the group going and facilitate ongoing discussion between group members.

Aside from the workload, a typical obstacle when dealing with the mining industry is accessing accurate, detailed information on your particular area of concern By applying an aggressive interpretation of Delgamuukw (I & II), the Tahltans have been able to require the companies and government to fulfil their consultation requirements. This includes the distribution of reports and data sets to the three Tahltan offices. Through an MOU with the Mines and Energy ministry, an open and productive working relationship exists between the BC government, Regional offices and the Tahltans.

Another obstacle is the continual change in both government and mining personnel or representatives. Re-educating these individuals or interests is time consuming. Providing "imaging packages" is helpful but ultimately "face to face" relationships must be built.

Technical consultants working for the mining proponent can be very distracting and frustrating. In general, they are trying to produce a product or information which suits their client. Therefore they are less then cooperative when TAG challenges their report or requests additional information. Other consultants attempt to have TAG do their work by requesting significant amounts of information from the Land Use Office at no cost.

Lessons Learned

• Balance your economical, cultural and environmental issues while conducting your cost/benefit analysis.
• Efficient technical assessment, increased capacity and informed decision making has been improved through the working group format.
• Continuous expansion of the envelope for recognition of First Nation priorities can be effective — providing you can keep up your end of the agreement.
• Understanding the relationship between technical priorities of mine development and the cultural/ecological knowledge of the First Nation will expand the scope of the mine assessment process.
• Cohesion, acting and speaking with one voice, strengthens the First Nation position.
• Whenever possible formalize your communication protocol with the mining interest or government process.
• Learn the language and values of the mining industry — it is an advantage when negotiating.
• Understand that final decisions on projects do not guarantee all issues are resolved. Keep the dialogue going, messages consistent and introduce First Nation values, rights and issues to all forums and processes.

Prepared by Glenda Ferris/Brad Nothstein

Case Study #4: Little Salmon Carmacks First Nation and B.Y.G. Mt. Nansen Gold Mine

The Mt. Nansen open-pit gold mine is located 60 km west of Carmacks in the Yukon Territory and is adjacent to settlement lands of the Little Salmon Carmacks First Nation (LSCFN). The gold mine began operating in the early 1990s, and declared bankruptcy last year. When operating at capacity, the mine employed up to 70 people and played an important part of the economy of Carmacks. At one time almost 30 people from LSCFN were employees, while other LSCFN members were contracted to provide services to the mine, such as hauling water for example.

The mine's short life was far from a best case scenario. From the start, the water treatment plant, which was supposed to treat the cyanide- and heavy-metal-laced water before it was released into the watershed, did not work according to specifications. Other structures were built without plans, and a diversion ditch was installed without proper authorization. The tailings pond began to leak severely soon after its construction. This was especially worrisome, since cyanide concentrations in the tailings pond often exceeded allowable limits, and required studies on tailings arsenic stability were never submitted. Despite repeated letters and directions from the federal Department of Indian and Northern Affairs (DIAND), the company failed to bring the mine operations into compliance.

In May of this year, the mine owner, B.Y.G. Natural Resources Inc. (BYG), was slapped with large fines for repeated violations relating to toxic mine wastes. Environmental concerns re-surfaced in late June, however, when the receiver, D. Manning & Associates Inc. of Vancouver, walked away from the site. The receiver apparently gave up on mine-site maintenance after creditors of BYG decided to stop funding the work.

The Yukon Territorial Court decision fined the company $300,000 for three contraventions of the Yukon Waters Act (YWA), which date as far back as May of 1997. These were the maximum fines possible under the Act, and this was the first time that the government had ever taken a mining proponent to court using the YWA. The company was convicted of violating its water licence by exceeding the allowable limits of cyanide in its tailings pond; failing to submit a required arsenic stability report; and discharging toxic effluent.

In his reasons for judgement, Judge Heino Lilles stated that BYG failed to show due diligence in meeting the legal requirements of its water licence, and instead "demonstrated an attitude consistent with raping and pillaging the resources of the Yukon."

BYG went into receivership earlier this year, and the mining operation was shut down. It is doubtful the $300,000 in fines will ever be paid, especially since the company still owes the government $225,000 in outstanding reclamation security payments. Estimated costs for site clean-up range from $4-8 million.

The LSCFN had poor communication with BYG since it took over the Mt. Nansen site in the early 1990s. There was no formal mechanism for discussion between the two parties, despite repeated attempts by LSCFN to establish such a mechanism. Therefore LSCFN relied on government reports and informal communication with LSCFN members employed at the site to keep them informed about mine activities. Clearly this was unsatisfactory but was never resolved with BYG.

In 1997, LSCFN called for a Water Board hearing to discuss BYG's breach of water licence. The hearing took over 3 months to schedule, and by that time the problems at the site has worsened. In calling for the hearing, LSCFN hoped to understand what exactly was happening at the site. Since communications with mine management were so poor, they felt they had no other alternative. Unfortunately the hearing did not bring as much clarity to the issue as they had hoped, although after the hearing LSCFN began getting weekly reports from BYG, however these reports were not as useful as they could have been. They were technical information which was not accessible to the community.

Of great concern to LSCFN is that, since last fall, caribou, bison and moose have been spotted drinking from the tailings pond. In one week LSCFN researchers and YTG Renewable Resources Department discovered 12 different sets of tracks all leading directly into the pond. Samples from one moose were analysed by a lab and showed no traces of the contaminants from the pond, but these results must be taken in the context that the moose was very young and may not have been associated with the pond over a long period of time. At the present time, LSCFN encourages hunters to provide samples from animals harvested in the tailings pond area. The Department of Renewable Resources (Yukon Government) is paying for blood samples from bison to be analysed. This co-operation will help to bring clarity and understanding about the magnitude of the problem and its impacts on the LSCFN community. Because of permafrost conditions and the topography of the tailings pond, constructing a fence around the pond would be very difficult.

At the present time, DIAND is responsible for care and maintenance of the site, and they are consulting very openly with LSCFN in carrying out this task. This includes allowing LSCFN open access to the site. The danger of tailings spills and acid mine drainage is low since the site is being maintained by DIAND, but the cumulative effects of several small spills remain unstudied.

A considerable amount of gold remains at Mt. Nansen, and it is possible that the site will be purchased and put back into operation if gold prices rise.

Lessons learned:

• Having full access to the site while it is in care and maintenance brings a level of confidence and comfort to LSCFN. The co-operative relationship between DIAND and LSCFN facilitated this access.
• Maintaining open lines of communication between LSCFN and the community people who had jobs at the site helped LSCFN to stay informed about what was going on at the site when relations with mine management deteriorated.
• In hindsight, establishing a community working group to work on the Mt. Nansen mine would likely have been beneficial.
• The mine operated for three years in the absence of any formal training mechanisms. If training initiatives had started earlier the number of LSCFN members who were able to find employment at the site might have been higher.
• It is important to be vocal about mitigative measures. A fence around the tailings pond would ensure that wildlife do not drink out of it, yet no fence exists at present and it is not likely that one will be constructed. Perhaps this could have been addressed during the environmental assessment or Water Board hearings.
• It was important to keep communication lines open between mine management and LSCFN.
• Initiating regulatory triggers (the Water Board Hearing) can be time consuming and this should be factored into strategy.

With thanks to Chris Noble and Richard Mueller.

Case Study #5: Makivik Corporation and Falconbridge's Raglan Mine

The Raglan mine is located in the Nunavik territory of Northern Quebec, on land that has been home to Inuit people for thousands of years. The mine is 60km west of the community of Kangiqsujuaq and the property covers 55 kilometres. Ore reserves at Raglan are estimated at over 19 million tonnes, and there is a 2,400 tonne per day milling operation on site. Infrastructure at site includes a concentrator, a tailings impoundment area, waste piles, an accommodations complex, a power station, offices, warehouses, and a waste water treatment system. The harbour facilities at Deception Bay were upgraded to accommodate the project, and an airstrip was built. Each year 130,000 tonnes of nickel/copper concentrate are produced at the site and shipped to Quebec City during an 8 month shipping season. From Quebec City it is sent by rail to the smelter in Sudbury, and then returned by rail to Quebec City for shipment overseas to Falconbridge's refinery in Norway.

Makivik Corporation is responsible for the political, social, and economic development of the Nunavik territory. Clearly they have been very interested in the many impacts and potential benefits from the Raglan mine since the ore was first discovered. In 1995 an Impact and Benefit Agreement (IBA) was signed between Falconbridge and Makivik. This agreement includes profit sharing and guaranteed contributions to the Inuit of Nunavik over the next 18 years, as well as training initiatives and other economic development plans.

This year marked the second year of production for Raglan, and the second year that Inuit communities have been dealing with the operating mine. The mechanisms put on place by the Impact and Benefit Agreement have been running for 2 years and already lessons have been learned. The IBA created a body known as the Raglan Committee, which has 3 members from the company and 3 Inuit members. On the Inuit side, there is one representative from each of the 2 closest communities to the mine, and a representative from Makivik. Everything that happens on site comes through the committee, and the Inuit members of the committee report back to their communities. In this way communities are kept informed about what is going on and can also bring concerns or problems from the communities to the Raglan Committee.

Sub-committees have been created as needed. For example there is a sub-committee on training and employment. This includes the school board, human resource staff from Raglan, and the regional government.

The IBA has its strengths and its challenges. Among the strengths are that after 2 years, the spirit of co-operation between mine management and Inuit people is still strong. There is a genuine willingness to work through issues and come to solutions that will work. Formal education is becoming much more of a priority for Inuit people which will benefit Inuit institutions as much as it will benefit the mine. People seem generally happy to have jobs at the site and are proud of working there. On the obstacles side, three key issues have emerged over the last two years: employment, impacts on the family, and on-site issues.

In the employment arena, 20% of the Raglan work force is Inuit, although the goal over the next 18 months is to raise that number to 30% if possible. While it is recognized that employment does have positive impacts on the community, it also brings with it some very complicated problems. The work rotation at site is 4 weeks in, 2 weeks out. In a family where one parent works at the site, the other parent becomes basically a single parent for one month periods. Child care becomes a problem for families where both parents work at the site. Even if their schedules are staggered, it mean that the children require care for 2 weeks straight while both their parents are at the site. Alcohol abuse among employees who are back in the community on their time off is problematic. These problems of child neglect and substance abuse affect the entire community, not just the individual or family involved.

People encounter discrimination in different ways at the site, although this is difficult to prove. Inuit have expressed that they feel like second class citizens at the site. For example, Inuit people don't seem to be getting promoted at the same pace as employees from Noranda, Val d'Or and other areas of Quebec. Language creates another barrier: With Inuit, French, and English people at the site communication can be a challenge. This issue has been discussed by the Raglan Committee and measures have been taken to address this difficult issue. They include providing explicit information to Inuit regarding job entry, promotion, leaves, lay-offs and so forth so that Inuit people know exactly how the system works. Inter-cultural courses are given to Inuit and non-Inuit.

At the community level, while sizeable amounts of money have been received through compensations or contracts, not a lot of spin-off economic development has developed from the mine. Where Inuit businesses have been successful in getting contracts from Raglan, in some cases these went to communities who directly benefited, in others, contracts were obtained by one of the regional organizations and still, in other cases, contracts were awarded to private enterprises. The Raglan Agreement is very clear on the procedure for obtaining contracts, Article 6.3.1 states that "...(Falconbridge) enter into good faith direct contract negotiations solely with an Inuit Enterprise, provided that a suitable qualified Inuit Enterprise has been identified..."

The Raglan Committee plays an important role in monitoring on-site. Monitoring is done by Falconbridge but Makivik has input in the studies. An example of co-operative monitoring is the Arctic Char monitoring study, which was completed in 1998 and will be conducted again in 2000-20001. Makivik plans to be as involved in the second phase of the study as in the first phase. Makivik has also conducted studies on water quality in rivers and lakes surrounding the site, in order to have their own data to monitor biophysical change over time. Off-site, Makivik is administering an ongoing study related to the social impacts of the mine on five communities. This work is undertaken solely by Makivik. Falconbridge does not do any off-site monitoring or research.

Looking to the future, tailings is an important issue, especially addressing the cumulative effects of many small spills. This issue is very technical and difficult to address without detailed technical knowledge.

Lessons learned:

• Where there is a genuine effort to work through problems on the part of both the company and Makivik, most issues can be resolved.
• Except for employment and training, the IBA does not address the monitoring of social impacts. It does address, however, monitoring of environmental impacts.
• Creating structures that will work for the context of the mine has been very important in the relationship between Falconbridge and Makivik. The Raglan Committee structure works for this site.

With thanks to Robert Lanari.

Case Study #6 Nishnawbi-Aski Nation and Ontario's Living Legacy

In February 1997, Ontario announced Lands for Life, a public consultation process on land use planning for Ontario crown lands within the area of the undertaking. Three planning area were identified: Boreal West, Boreal East, and Great Lakes-St. Lawrence. The Ontario Government established a Round Table for each planning area with representatives from each sector of interest. Many First Nations were strongly opposed to the Lands for Life process with good reasons, primarily the lack of recognition of treaty and aboriginal rights and no recognition of the government to government relationship between First Nations and the provincial government. Nishnawbe-Aski Nation (NAN) Chiefs made the decision to participate in the Lands for Life process by appointing representatives to the Boreal Forest East and West Roundtables. After careful examination of the Lands for Life process, in July 1998 the NAN Chiefs withdrew from the process, citing lack of community consultation and the threat to aboriginal and treaty rights. Because treaty and aboriginal rights were not recognized in the Lands for Life process, the Chiefs determined that the process presented a threat to those rights and refused further participation.

In October 1998, the Ontario government made public over 80 recommendations on land use planning for Lands for Life. The tabled recommendations were drafted by three Chairs of the Roundtables, a consultant, and Ministry of Natural Resources personnel. They worked from draft reports from the roundtables. Industry, First Nations and participants in the process all decried the recommendations based on their context and content.

In November 1998, NAN launched a procedural motion in court to stop the Lands for Life process citing a lack of consultation and breach of legislative process. In May 1999 this court proceeding was adjourned pending further community consultation.

In January 1999 the Ontario government attempted to salvage the Lands for Life process prior to the upcoming election. The Ministry of Natural Resources conducted consultation with various groups to determine the parameters of a possible deal.

In February 1999 the Ministry of Natural resources conducted closed door meetings with industry and the Partners for Public Lands (a coalition of environmental groups) in an attempt to bring unity to the table. These secret meetings formed the basis of the Ontario Living Legacy that was announced on March 29, 1999 by Premier Harris and Minister John Snobelen.

Concerns:

1. The absence of First Nations in the negotiations and the lack of any further plan for inclusion in future processes.
2. Granting of increased tenure rights to the forest and mining industry that significantly strengthened resource industry's interests in resources allocated to them and may require the province to compensate them should lands be withdrawn from tenure arrangements by the province. While existing mines in Ontario will be excluded from this process, new exploration and mining rights will fall under this regime.
3. The resources allocated to these initiatives is designed to divide and conquer the stakeholders including First Nations.

Specific NAN concerns with the Living Legacy:

1. The disrespect conveyed to the NAN people in the land use planning process. The conduct of government and industry is not conducive to a good working relationship.
2. The planning process was flawed. All affected parties should have been consulted on how to address the failure of Lands for Life instead of the secret meetings which were held.
3. The 1999 Ontario Forest Accord and Proposed Land Use Strategy provide no substantive role for First Nations in the stewardship of Ontario's resources. There are no specific measures by which first Nations environmental, economic, and traditional knowledge can be used to steward and manage the resources of Ontario with the provincial government and other commercial concerns. Other recognized environmental management programs such as the Forest Stewardship Council's Forest Certification Procedures recognize and value traditional knowledge. The Living Legacy and Forest Accord lack any substantive direction as to how First Nations might be included within the decisions being made and proposed to be made in the future. Other provinces have adopted measures to address our environmental preservation concerns. For example, the Province of Manitoba and Manitoba Treaty Organizations have reached an agreement on how a network of protected lands will be identified and set aside so as to recognize their rights and interests.
4. The 1999 Forest Accord and the Proposed Land Use Strategy directly affect our communities' well being. These agreements will adversely affect man of our communities in their social, cultural, and economic well being. New and expanded protected areas and intensive forest operations will be established. High mineral showings were used as a veto for protected areas, and First Nations had no role in setting priorities for protected areas, unlike industry. Furthermore, our ability to use the planning provisions contained within the Ministry's Forest management Planning Manual to protect our important sites and land use areas will be lost because no comparable mechanism exists for protected area identification and management in Ontario. These new protected and intensive use areas will also affect our treaty and aboriginal rights.
5. Throughout the Lands for Life planning program, NAN was assured by the Ministry of Natural resources that this planning program would not apply to the far north (north of 51°). The commitment made in Living Legacy and Forest Accord is to expand forestry and mineral exploration into the far north and identify new protected areas without First Nation input.
6. The Forest Accord and Proposed Land Use Strategy do not meet the diverse needs of First Nation communities, who are situated throughout the planning area. Their environmental, social, economic and cultural needs vary depending upon their location and circumstances. The Forest Accord and Proposed Land Use Strategy impose decisions from Queen's Park upon First Nation communities without respect and provision for these diverse needs.

Mining and Mineral Exploration

The Lands for Life and Living Legacy processes have, as a goal, the achievement of greater certainty for resource extraction industries. The mineral industry has made considerable gains through these processes, not the least of which is their ability to conduct mineral exploration unhindered on 88% of the lands in the planning area. Of the 12% which is reserved as protected areas, almost half of these areas will permit mineral exploration. If a protected area demonstrates a strong mineral showing, it will be removed from the protected area, developed, and then redesignated as a protected area. During the period when the protected area designation is lifted from the land, another area of equal size will be designated a protected area.

What is Next?

In the coming months, NAN First Nations will hear about new initiatives from the Ontario government that will be the mechanism to carry out the following:

• legislation to carry out Lands for Life,
• repeal of the Environmental Bill of Rights to remove obstacles to development,
• increased tenure to forest companies may include fee simple,
• legislation to create equal access to hunting and fishing rights,
• increased participation of municipalities.

NAN does not regret withdrawing from the process at an early stage, and is currently consulting with communities about the next steps forward.

Prepared by Ben Cheechoo, with minor additions by Christine Cleghorn.

Bibliography

Avery, Bryant. "Canada Has Diamond Studded Future." Edmonton Journal. October 13, 1998. Journal Extra.

http://www.falconbridge.com/bus/rag/htm

Lutsel K'e Dene First Nation. 1999. Community Based Monitoring Annual Report. Lutsel K'e, Northwest Territories.

Mushuau Innu Band Council and Innu Nation. 1995. Gathering Voices: Finding the Strength to Help Our Children. Douglas and McIntyre. Toronto.

The Sub-Committee of the Intergovernmental Working Group on the Mineral Industry. 1998. Report on Aboriginal Participation in Mining. December. Indian and Northern Affairs Canada.

Voisey's Bay Nickel Company. 1997. Environmental Impact Statement - Voisey's Bay Mine/Mill Project. St. John's Newfoundland.