Will Canada Choose Mining over Indigenous Rights?

Can you put a price on an indigenous community’s culture? Is a company’s bottom line worth more than a traditional way of life? Canadian Prime Minister Stephen Harper’s government will soon weigh in on these human rights questions.

The Canadian cabinet is currently reviewing the proposed Prosperity Mine Project which, if approved, could generate significant revenue but also jeopardize the very survival of the Tsilhqot’in First Nation’s culture.

Proponents of the mine, which would be located in British Columbia, focus on the profits at stake and fail to adequately account for the human impacts.  But for rights to have meaning, they must amount to something more than mere words, even in the face of massive profits.

A panel established by the Canadian Minister of the Environment to assess the potential effects of the project was unequivocal about the harm Prosperity Mine would cause to the Tsilhqot’in First Nation.  The panel found that:

• Development of the mine would have “a significant adverse effect on Tsilhqot’in Nation,” including on the long-term physical and mental health of local communities.
• Mining activities would extinguish the deep cultural connection that the Tsilhqotin Nation now has with the area.
• Destruction of Fish Lake and its surrounding land, important areas for fishing and other traditional activities, would be “irreversible” and “unmitigable.”

Harper’s cabinet should look at the full cost of Prosperity Mine, reaffirm the rights that First Nations are afforded in Canada, and conclude that this mine is not the right investment.

Under international and Canadian law, First Nations have rights that should protect them from such harm.  As detailed in "Bearing the Burden", a recent report by the International Human Rights Clinic at Harvard Law School, First Nations are entitled to special protections.  Canada has ratified widely accepted human rights treaties that obligate it to protect aboriginal rights. These include the right to enjoy one’s culture and the right to self-determination, which encompasses a people’s right to choose how to dispose of their natural resources.  Canadian law also recognizes aboriginal rights.  It requires the government to conduct “deep” consultation with First Nations about projects, such as Prosperity Mine, that would potentially infringe on those rights.

Tsilhqot’in Nation has repeatedly and vigorously voiced its opposition to Prosperity Mine.  To abide by Canada’s aboriginal rights obligations, Harper’s cabinet should seriously consider this First Nation’s position and the repercussions of disregarding the findings of the federal panel.  At a minimum, if Harper’s cabinet approves the mine, it must justify why the special protections afforded First Nations were not sufficient to prevent the project from moving forward.  As the Tribal Chair of the Tsilhqot’in said, “First Nations everywhere are watching to see how much our cultural survival really means to the government.”

Photo credit: Ecotrust Canada

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Ari Peskoe, J.D. ’11, is a student in the International Human Rights Clinic at Harvard Law School. He is working on issues involving the effects of mining on First Nations.