A team from Harvard Law School has concluded that British Columbia's mining regulations are unfair to aboriginal people, who are being denied rights of self determination they should enjoy under international treaties.
"Domestically, I wouldn't say there are any specific laws being broken, but internationally certain legal principles are being violated," said the director of the study, Bonnie Docherty, a lecturer at Harvard's international human rights clinic.
"Under international law … there is a pretty clear principle that indigenous people should receive special protection in recognition of the connection they have with the land … that isn't happening," said Ms. Docherty. "They have a right to be part of the decision-making process and to be taken seriously … [but]the current system is not taking their opinions fully into account."
Researchers from the clinic made two field trips to B.C. in the past year to visit the Takla Lake First Nation, whose traditional territory covers about 27,000 square kilometres of mineral- and timber-rich land northeast of Smithers.
Ms. Docherty said the study included a review of provincial, federal and international laws and coupled that with local observations of how the 1,000-member Takla Lake band is faring under B.C.'s Mineral Tenure Act.
The Harvard report, released Monday, calls on the provincial government to make some dramatic changes.
"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," states the report. "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."
The report, based on 50 interviews with aboriginals, government officials and industry representatives, concludes B.C.'s mining laws "favour industry, leave great discretion to government, and deny first nations an effective means to have a say in what happens to their land."
Last year, Premier Gordon Campbell hoped to address that issue in a proposed new Recognition and Reconciliation Act, which would have established a system for joint decision making and resource sharing on Crown land within a band's traditional territories. That effort floundered, however, when talks broke down with native leaders.
In addition to urging government to reform mining laws, the report asks industry to increase consultation with first nations and to do more in sharing the benefits of resource development. At the same time, it says native leaders should do a better job of both clarifying what types of benefits they want and the means of consultation they expect.
"I'm hoping this report will help change the Mineral Tenure Act," said Chief Dolly Abraham of the Takla Lake First Nation. "Right now, the way it is, it is highly impacting our way of life."
Chief Abraham said the free-entry permit system in B.C. allows miners to register claims over the Internet, without consulting local bands.
"I have a band member who found a stake has been made right where her home is," she said. "Traditional hunting areas have been staked … fishing areas have been staked … the government has got to realize we live off the land," said Chief Abraham.
Anne Marie Sam, chair of a group called First Nations Women Advocating Responsible Mining, said the long-term social and environmental health of communities is more important than short-term economic gains.
"First nations have to be involved in planning and selecting places that are acceptable for development," she said. "Right now, miners can go wherever they want."
Ms. Sam said as a child she heard her grandfather and uncles talking about gold deposits on Mount Milligan, about 150 kilometres northwest of Prince George.
"They kept quiet about that because that is our traditional hunting area and they didn't want to see it damaged," she said. "Now, there is a mining company working in there. That is the kind of thing that upsets us. I know mines create jobs, but what I have to ask is: 'How will this impact my 4-year-old daughter? What will she have when she is grown and the mine is gone?' "
Native leaders feel they should be allowed to answer such questions before deciding what direction their communities take.
And according to Harvard Law School that shouldn't be something they have to ask for; it should be their legal right.
Mark Hume