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Joaqlin Estus
ICT

ANCHORAGE, Alaska — Fifteen Southeast Alaska tribes have approached an international commission to gain support for a stronger voice in Canadian decision making on mining projects just across the border from Southeast Alaska.

This story involves two commissions: the Southeast Indigenous Transboundary Commission and the Organization of American States Inter-American Commission on Human Rights, which is within the United Nations. And the story is about two petitions, one filed Monday, the other submitted in 2020.

The Indigenous commission of 15 federally-recognized Southeast Alaska tribes was formed in 2014 to protect tribal lands and waterways for future generations. The environmental law nonprofit Earthjustice is representing the Indigenous commission on transboundary issues with Canada.

On Feb. 19, the Indigenous commission submitted a brief asking for a hearing on whether their rights are being violated in the Canadian permitting process.

In a statement the Indigenous commission said that “by approving the mines without getting the free, prior, and informed consent of the Southeast Alaskan Tribes threatened by water pollution and other adverse impacts, the governments of British Columbia and Canada are violating their internationally recognized human rights, including to a healthy environment.”

“Time is running out for our rivers, our fish, and our people,” said Vice-President Rob Sanderson, Jr, Tlingit and Haida, in a statement. “If Canada won’t honor their obligation to give us meaningful environmental protections and secure our consents on these risky projects, then the international community must step in to protect our rights.”

“The worst part is they’re facilitating these mining projects under the guise of developing critical minerals for a clean energy transition—but most of the British Columbia mines primarily produce gold,” said Senior Attorney Ramin Pejan of Earthjustice, in a statement. “It’s deceptive and misleading.”

The tribes had provided the grounds to be allowed to ask for a hearing in their first petition, which was completed in 2020.

The tribes said they traditionally have relied on the Taku, Stikine, and Unuk watersheds for many species of fish, including salmon and eulachon, for subsistence and for cultural practices and spiritual beliefs.

The Inter-American commission summarized the tribes’ petition as stating that six mines pose “an imminent and foreseeable threat of polluting downstream waters with highly toxic heavy metals that could cause sustained and significant declines” in the fish populations.

As for Canadian agency positions, the Inter-American commission summarized them as saying that the potential environmental threats raised by the petitioners — acid rock drainage, tailings dam storage failures and harm to fish populations caused by increased metal concentrations in downstream waters — were considered by authorities in Canada and British Columbia during the permit review process and determined “not likely to cause significant environmental effects.” That conclusion takes into account “the implementation of proposed mitigation measures and other commitments agreed to by the project proponents,” the Inter-American commission summarized.

The agencies also said the permitting decisions were properly conducted, and it’s “out of order” for the tribes to preemptively challenge the potential outcomes of coming environmental assessments.

The agencies also submit that they don’t have a duty under Canadian law to consult the tribes or seek their free, prior, and informed consent regarding the permitting of the mining projects. Moreover, the agencies said they routinely provide opportunities for the public to provide input during the environmental assessment and those opportunities were and are available to the tribes.

In August 2023 the Inter-American commission ruled it would accept a request to hold a hearing. The grounds are based on questions of life and personal security, preservation of health and well-being, benefits of culture, and property. Next it will decide whether to hold a hearing.

At issue is whether the Canadian government has a duty to consult, and where appropriate, to accommodate Southeast Alaska tribes when it considers conduct that might adversely impact Indigenous or treaty rights. In 2021, the Canadian Supreme Court ruled those rights extend to Indigenous people who have traditional ties to territory within Canada. Southeast Alaska tribes say they have just such ties.

Of the six hard-rock mines in Canada, two are operating, one is in receivership (bankrupt) and three are in the permitting process. Others are in the early planning stages.

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