Mount Polley Mine: 'Indigenous Law' Will Now Be Enforced

The negative effects of extractive industry operations on indigenous communities have been obvious for quite some time.

Studies show that the rights of Native communities are often at risk in such settings, especially when hydraulic fracturing and other crude oil-related developments are being operated on or near their lands.

What is often less reported however, are the dangers that Native peoples face from overlooked mechanical or structural failures where materials or waste compounds are stored in remote areas.

Images from NASA showcase the contaminated water that surged from the bright blue retention basin into nearby lakes when the mine collapsed.

Mount Polley: Canada's Worst Mining Spill

That danger was illumined in brutal clarity last August when a tailings pond in British Columbia, Canada failed, spewing 2.5 billion gallons of waste into nearby waterways. The Mount Polley Mine, located in B.C.'s vibrant Cariboo region sits amidst the province's Fraser River watershed, an essential resource not only to the Vancouver Mainland, but to the Neskonlith Indian Band and nearby towns of the Cariboo. First Nations communities along the Fraser River and its tributaries depend on the rivers and lakes for food, water and livelihood. In many cases, access and the right to manage those resources are protected by treaty or another type of agreement with the government. In this case, sovereign rights of the Secwepemc First Nation (Shuswap First Nation in English), which includes the Neskonlith band, are protected through a reconciliation agreement with the Province of British Columbia.

The spill, reported to be the largest industrial accident of its kind in Canadian history, flowed into nearby waterways, polluting Polley Lake and creating a four-month-long drinking ban for local communities. Cleanup was estimated to cost $200 million.

This January, the results of the first of three investigations into the spill was released. The fact that the spill was caused by a failure of the pond's earthen containment wall was visually evident from aerial photos. But the assessment of what caused the breach sent a chilling wake-up call to Native communities situated around North American ore mining sites.

"[The] dominant contribution to the failure resides in the design," said the three-expert panel charged with determining the reason for the breach. "The design did not take into
account the complexity of the sub-glacial and pre-glacial geological environment" below the dam, which breached when stresses underneath it changed. For unknown reasons, the structural design for the containment pond had been changed at the last minute to an option that appears to have been "flawed." The loading conditions of the pond didn't take into consideration geological factors that would be essential to the long-term integrity of the containment walls. When the wall collapsed, the breach was sudden and unstoppable, creating a swath of heavy metals, mud and debris that penetrated nearby water systems.

Even before the cause of the breach was known, Native communities in other parts of the province began to speak out against mining operations on their lands.

"The spill’s ramifications rippled to Imperial’s Red Chris mine in northern BC, where elders from the Tahltan Central Council (with whom the company previously had a positive working relationship) established a blockade to voice their concerns about the potential of a similar incident in their territories," stated First Peoples Worldwide in their Corporate Monitor post last September. In order to continue operations, the company was forced to sign an agreement that would allow third-party inspection of the operation under the band's auspices.

Similar concerns were voiced in other parts of western Canada as well. In July, just days before the dam broke, Toronto-based Seabridge Gold obtained environmental certificate for its $42 billion KSM mining operation at the northwest corner of B.C. Weeks later, with news of the breach still in international spotlight, KSM bowed to pressure to allow third-party oversight for the life of the operation. Geologic studies suggest that the area possesses the same sub-glacial mining risks as the Mount Polley mine.

New Mining Policies for First Nations' Lands

The provincial government has since delayed the release of the final report until 2017. The announcement, along with revelations of the avoidable cause of the breach, only heightened the frustration of Native communities in B.C.

Realizing that it would be essentially powerless to prevent any similar disasters without a conclusive report that could spur the industry and province into remedial action, the Secwepemc took what some might feel was a bold step: It invoked its rights as a sovereign First Nation of Canada and evicted Imperial Metals from its land. It also announced that it now had mining policies of its own, and would enforce from hereafter.

''One thing I want to make perfectly clear is this policy isn't a wish-list,'' said Jacinda Mack when the policies were announced. Mack serves as the the council coordinator for the Secwepemc Nation. "This is Indigenous law."

The 55-page document spells out in specific terms the responsibilities of the mining company and the rights of the First Nation to oversee and enforce those guidelines. It invokes the United Nations Declaration of Indigenous Rights to define the Native peoples' right to "determine and develop priorities and strategies for the development or use of their lands or territories and other resources." It also defines its right to close the mine and evict mining companies as it sees fit.

The policies were developed by a third party, the Fair Mining Collaborative, and is now available to all First Nation communities facing the question of mining on their lands.

"Indigenous rights can be defined as “flowing from Indigenous peoples’ historic and sacred relationship with their territories,” says Fair Mining Collaborative.  "These rights are derived from Indigenous laws, cultural practices, customs, and forms of governance."

Chief Bev Sellars of the Soda Creek Band, which was affected by the tailings pond breach, explained the reason for the policies in more concrete terms. "Since mining arrived in BC First Nations have been ignored and imposed upon," she stated in an interview with Canadian publication The Tyee. "With this mining policy we can no longer be ignored or imposed upon, and the province and industry can no longer claim they do not know how to work with us ..."

Tailing Ponds Risks: A Worldwide Issue

According to studies released by the Center for Science in Public Participation and Earthworks, the conditions that affect the Mount Polley and KSM mining sites aren't limited to British Columbia.

"There are 839 tailings dams in the United States and approximately 3,500 around the world, according the U.S Army Corps of Engineers and the United Nations, respectively," the organizations announced in a press release in February. There is currently no international oversight of such mines.

There also aren't uniform laws protecting Aboriginal rights when it comes to mining operations. First Peoples Worldwide's 2014 study of extractive industry operations around the world last fall illumined numerous gaps in international policies when it came to indigenous communities and their rights to water, food and other resources when it comes to mining operations.

"Our Indigenous Rights Risk Report identified 73 mining projects on or near Indigenous Peoples lands globally, of which 17 are on or near Native American lands in the U.S.," said a spokeperson for First Peoples.

It is worth noting that while last fall's assessment of U.S. mining operations near or on Native American lands suggested that their residents experience less risk from mining operations than in Canada, Native American rights are not necessarily as far-reaching as in Canada. The path to nation sovereignty and community oversight of mining operations is often slower in the U.S., where some Native American populations are still battling the courts regarding environmental justice and climate justice issues.

Mount Polley: Climate Change?

There are numerous takeaway lessons that can be extracted from the Mount Polley catastrophe. While it is geographically more than a thousand miles from Alberta's Tar Sands, Mount Polley mirrors the very type of environmental disaster that ecologists feared would occur if the Embridge Pipeline were constructed across the watershed. The provincial government turned down the controversial oil pipeline two years earlier because it said it feared among other things, that the pipeline would put this breadbasket of resources at risk. It cited insufficient protections to ensure a spill of far-reaching potential wouldn't occur. The initial report on the Mount Polley disaster suggests that far-reaching environmental spills can still occur in industries that have prevailed for years and settings that are actively managed, just as they can miles of pipeline that cross desolate terrain.

One question that the report did not address is why there was a shifting of the sub-glacial formation. It is to be assumed that such change can occur over years as a part of the natural ecology of the area, but was this unexpected shift due to melting of glacial formations, and could it be related to climate change? Is this why it occurred at the peak of the Cariboo's warm weather, and is it a risk we'll see again with the Northwest's increasingly warmer and drier summer landscapes? The next two reports aren't meant to address geologic factors, but with the lessons of the Mount Polley Mine disaster now at hand, and concerns about climate change that is increasing the prevalence of warmer temps, perhaps these are questions worth asking.

 

http://youtu.be/vg3yd8GPSnA

 

Images of Mt. Polley mine site: NASA