An open invitation to reconsider (the law governing) the Kemess North Mine:

The verbal knives are out and the rhetorical slashing has begun in earnest.  This results in a most peculiar scene of mining-decision-making by gross politics.  I refer to that old blogger’s standby the Kemess North Mine. 

You may recall that Kemess South Mine is producing but due to close in the next few years.  After years of wrangling, an independent panel was asked to review the plan to develop a new north mine.  The panel produced a report that I have incorrectly called the Scoble Report.  The report recommended that the mine not be developed primarily because they felt the deposit is marginal, even at today’s prices; could be mined only for about ten years; and then perpetual water treatment would be required.  The panel concluded that this is pretty bad economics by any standard: ten years of profit in return for the unquantifiable, perpetual cost of treating acid mine drainage. 

The panel looked into the question of the sacredness of a local lake that would be filled with tailings,  They concluded that the folk with rights to the lake supported mining.  But seeing as there are are only nine or so such folk they are a small, lonely voice in the screams emanating from First Nations on either side of the lake.  Seems the lake has always been a kind of natural barrier between competing tribes of different language groups and mutual animosity.  Nothing changes.

The Scoble Report did make a long list of recommendations that would have to be implemented if the mine were developed.  They left that decision to authorities in Victoria and Ottawa.  I do not understand the Canadian mine OK-to-go process well enough to know if the decision rests with professional regulators or elected officials. 

Now stepping into the fray with a particular vehemence is the Association of Mineral Exploration of British Columbia (AMEBC).  In an extraordinarily widely distributed letter they plead for continued consideration of the mine.  In the letter and an accompanying brochure they say that mining is good for British Columbia (true); that the Scoble Report does not have to be the final word (it never purported to be); that relations between First Nations and Subsequent Nations could be better (too true); and then they urge the mayors and others to whom the letter is addressed to write to the politicians and urge them to promote the project.  Actually the list of letter recipients and suggested targets of a letter campaign makes fascinating reading in and of itself. 

Predictably the First Nations shoot back with equal vehemence.  Here is their opening paragraph:

WE STRONGLY OPPOSE your harmful campaign to undermine the Kemess North Mine Joint Review Panel and its central recommendation to government Ministers that Northgate Minerals Corporation’s Kemess North Project not be approved.

They make no bones about what they consider the inadequacies of the AMEBC letter and brochure:

We reject your brochure as bitter rhetoric. It provides nothing more than slanted economic statistics, selective information, and out of context statements. It combines this with fearful statements about the economic uncertainty that will overcome the province if the project is not approved and the specter of the mountain pine beetle. Sadly for industry it comes across as a feeble interpretation of all the highly complex submissions made to the review panel, with a predictable claim that the project should proceed for strictly economic reasons. Missing from the brochure are the unacceptable environmental, cultural, social and heritage risks the project poses to the Tse Keh Nay.

And I thought the Scoble Report rejected the project on the basis of “strictly economic reasons.” 

This rather sad and silly spectacle of decision-making by political campaign raises these questions:

1. Is there no one authority to make a final decision?
2. Who actually “owns” the land on which the proposed mine is situated?
3. What weight do we assign to the recommendations of “expert” panel reports?
4. Is the project economically viable if it involves perpetual mine water treatment?
5. Why is it necessary or even appropriate for an industry association to wade into the fray; surely they should be impartial in such matters?
6. Where are the regulators and politician in what should be an interaction between sovereign nations?

I suspect this is one of those cases that highlights the confusion that surrounds the law of First Nations right to land, the role of provincial and federal regulators, and the processes of environmental impact.  It is often said that bad cases make bad law.  Maybe this is a instance where bad law makes a bad case. 

All that a mining company desires is transparency and certainty of law.  Otherwise, as here, investment degenerates into a morass of political risk that makes Zimbabwe seem like a haven of sanity.  I suggest that we put the Kemess North Mine issue on the back burner, and first sort out the laws that govern and/or should govern this kind of situation.  Maybe the law already exists and the parties are ignoring it for their own perceived potential advantage.  But even if the laws are in place and clear, I submit they are clearly inadequate to the situation.  Maybe with the mine on the back burner, all parties should turn to the process of revamping the laws to make them clear, certain, transparent, and implementable.  And if this means recognizing First Nation title to the land (derived from treaty or logic), recognizing that Subsequent Nations have to treat with First Nations in this type of case as one sovereign authority to another, and making the mining company and their industrial organizations (like the AMEBC) act as the supplicants they are, then so be it. 

Maybe all that is needed is a decent environmental impact assessment procedure that minimizes the multi-party process that now seems to prevail.   Maybe all that is needed is a brave politician or simply a brave regulator to tell the truth or lead the way.

I suspect none of this will come to be, and we will see this muddled process blunder along for years to come.   Meanwhile communities will grow poorer or richer according to how they decide to act and develop.  Companies will come and go.  Metal prices will go up and down.  And projects will go through ups and downs just as is the analogous Galore Creek project. 

In this skirmish, I confess I believe the winners are the First Nations, if only because of their concluding paragraph:

We conclude by asking the BC mining industry to engage with First Nations in a respectful manner, and to recognize and respect our Aboriginal Title and Rights. A first gesture would be for the industry to publicly stop and retract its campaign to undermine the Kemess North Mine Joint Review Panel’s central recommendation. Then once the project’s rejection has been confirmed by government we invite industry to work with us on land and resource planning and on developing exploration programs and mines that are environmentally sustainable and respectful of our rights, title and culture. We would welcome an opportunity to work with you in this way.