Kemess North: First Nations, fish and government process

Northgate Minerals’ proposal to use Duncan Lake to dispose of tailings and acid drainage from its Kemess North mine expansion is getting a lot of attention. Don Whiteley wrote a column in the Vancouver Sun indicating that the $190 million project will be a test case for implementing the new Supreme Court of Canada decisions related to resource activities on unceded First Nations land.

He is right, although the first tests will likely be challenges to recent mergers of various logging companies and to legislation that off-loads decision-making onto resource corporations. Both of these challenges may be hitting the courts this month. There is no denying that progress on the Kemess North project and the fate of the fish in Duncan Lake will be watched closely by all those concerned about Aboriginal land issues, and may become the next test case.

Indeed, interest in the Kemess North minel is not coming from just industry and pundits. First Nations have come togetherto protect their interests from the proposed mine.

As I understand the proposal, Northgate Minerals has a number of options for the mine, one of which involves using a fish-bearing lake to dump tons of tailings and dispose of acid generated by the mine.

There is only one economically viable option for the mine, but it requires destroying the lake. The five affected First Nations (Gitxsan House of Nii Kyap, Takla Lake First Nation, Fort Connelly First Nation, Kwadacha First Nation, & the Tsay Keh Dene First Nation) haven’t objected to the mine, rather to the use of the lake. They are concerned about impacts on the Skeena and Findlay watersheds, where they take fish for food.

This is where things get interesting, as Northgate and the five First Nations appear to have diametrically different interpretations of the status of their discussions. In Northgate’s 3rd Quarter Interim Financial Report, filed 31 October 2004, there’s a section entitled Kemess-North Project Update. Under the subheading Permitting and Community Relations, the company says this:

In parallel with its ongoing permitting related activities with provincial and federal regulators, Northgate has entered into discussions with the five First Nations groups with interests in the Kemess North project area. In July 2004, a Statement of Understanding (“SOU”) between Northgate and the Five Nations was signed. Currently, Northgate and the Five Nations are negotiating a Protocol for Consultation and Accommodation regarding the Kemess North project.

Sounds great doesn’t it? However, contrast the company’s benign interpretation of the July 2004 meeting with the position taken by Justa Monk and the chiefs of 5 nations in a letter dated November 9, 2004, which says,

The 5 Nations have made a final decision to oppose the use of Duncan/Amazay Lake as a site for mine tailings and waste rock…During your initial meeting in Prince George on July 30th, 2004 at the Carrier Sekani Tribal Council office the Chiefs clearly stated their opposition to the destruction of their lake….

The discrepancy between what Northgate is disclosing to its investors and what First Nations are saying is striking. It points to a key vulnerability in industry and governments’ quest for certainty–the discrepancy between what is actually happening and what BC resource companies are disclosing to key players in the financial markets.

And it’s not just the 5 nations that are opposed. Other First Nations have been contacting Dogwood Initiative asking for help to oppose the project. Just last week, we were contacted to see if we could research the money behind the project. We are doing so.

Despite all the complexity, the Kemess North project raises a simple question: Will the Crown continue to allow corporate economic development schemes to trump Aboriginal title and rights?

In assessing the viability of resource development projects, the larger political context is always important. Kemess North is emerging as a key battleground for the Crown in new post-Haida era. The mining industry is using Kemess North to force the provincial government’s to demonstrate its commitment to mining in BC.

It astounds me that the mining sector’s “what have you done for me lately” approach with government is still effective. It appears Kemess North has replaced the Tulsequah Chief mine on the Taku and mining development in the South Chilcotin park as the bellwether of the mining sector’s wish list for their ever generous Santa–Gordon Campbell’s government.

First Nations are clear– they will not let the mine proceed if it destroys the lake.

However, Michael McPhie, the new CEO of the Mining Association of BC, predicts in Mr.Whiteley’s Vancouver Sun column that native objections will not stop the mine. McPhie thinks the Environmental Assessment (EA) process will resolve the issue, citing the Supreme Court’s decision in the Taku case as support.

But what both McPhie and Whiteley fail to mention is that since the Taku EA was completed, the BC government has gutted the EA process, removing many of the safeguards supported by the Canadian Supreme Court. This raises significant questions about whether an assessment conducted under the current eviscerated EA process will satisfy the legal requirements to consult and accommodate First Nations.

My guess is neither the BC nor the federal EA process will pass the Supreme Court’s new test.

The question then is: do the federal and provincial Crowns attempt to play chicken with the affected First Nations and proceed under the current EA process, or do they amend the EA legislation to comply with the Court’s direction and then properly assess the Kemess North project?

Despite the ongoing spin about increased “certainty,” the recent Supreme Court of Canada decisions leave many questions unanswered like the legitimacy of the current EA process. This lack of clarity will inevitably interfere with projects like Kemess North.

Confusing huh? Well, as Mr. Whiteley predicts, it will take time and more court appearances to confirm whether business-as-usual has really changed. Dogwood Initiative is working with a variety of First Nations and community partners to ensure it does.

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