By Joseph Kirschke, News Editor-Mining
A new white paper by Harvard’s Project on American Indian Economic Development, On Improving Tribal-Corporate Relations in the Mining Sector (Kennedy School April 2014) documents long, fascinating histories and synergies of mining developments involving Native American lands across 48 states in the United States. But by heralding lessons learned for any miner with any stake in Corporate Social Responsibility (CSR), it’s a must-read, too.
Thoroughly researched by Native American graduate students Jackson Brossy and Christopher Kolerok, the document, commissioned by an editorially neutral Rio Tinto plc, tackles mining issues and operations spanning 567 tribes and more than 500 villages and reservations. Its 131 pages, moreover, clearly illustrate the promises and perils of mining in places where laws, institutions, infrastructure and, above all, value systems, often diverge from other parts of the country.
Through case studies and legal precedents, the paper underscores exactly how tribes and their 56 million land acres—hosting 40% of U.S. uranium and 30% of coal—are jurisdictions autonomous via laws enacted from the early 1800s and beyond the 1960s. “Outsiders should learn about the particular history of the culture and laws of that nation before embarking on economic transactions,” the authors noted.
It is truly difficult to generalize about the American Indian population—one which, despite widespread poverty, has witnessed economic growth triple that of the U.S. people at large into the 2000s. Population increases since have been accompanied by an unprecedented economic diversification in areas from extractives to manufacturing to tourism.
The challenges they can pose to mining companies, meantime, are potentially enormous. The very perception of time, for instance, can clash between miners and native populations, according to the authors. “For tribes, longer-term relationships are more important than short-term extraction ventures,” they wrote. “Depending on community buy-in, tribes may have a fast pre-project development time expectation and a slower post-project extraction pace.”
But within tribes themselves, attitudes ingrained by tradition and heritage can also be varied, noted the authors. “Ceremonies and displays of tribal culture can be considered by corporate negotiators as a distraction and the perceived solution is to send a consulting anthropologist,” they said.
This, however, is nearly always a dire mistake. “Tribes should not be stereotyped as being all of one mind when it comes to a matter as contentious as mining on reservations,” the paper continued. “As with other communities, there may be deep divisions; the wise developer recognizes such disagreement is the tribe’s business.”
By any measure, smoothly operating projects generating prosperity for miners and tribes should prevail as a win-win—yet one particular narrative has often proved a constant. “More than one would-be developer has found out the hard way,” noted the paper, “that tribes are real governments and have the power to make or break attractive projects.”
PolyMet Mining Inc. discovered as much after developing its copper, nickel and precious metals mine near the Fond du Lac Band reservation in northeast Minnesota. Under U.S. Environmental Protection Agency’s (EPA) Clean Water Act (CWA) mandates, rather, tribal “off-reservation” rights meant sulfate pollution concerns expanded—and considerably delayed—the permitting process.
And although Fond du Lac Band has not insisted on anti-mining resolutions, “it’s really about what can be done responsibly—sustainably,” tribal representative Karen Diver told Brossy and Kolerok. “Anything that would affect the ecology of the ceded territory that might diminish tribal members’ ability to hunt, fish or gather, that’s a huge issue to our people.”
In gold-copper-silver-rich Idaho, the strength of tribal regulatory strength emerged after the Shoshone-Bannock Nation detected selenium contamination from two closed phosphate mines. Tribal discontent with a strategy to cap, rather than decontaminate the site after a $57 million cleanup order against Philadelphia-based FMC Corp. by EPA officials, led to the formation of a Selenium Working Group to investigate active and dormant phosphate mines statewide.
The persistent takeaway: “The tribes’ equal standing with other governments is a clear signal to resource developers that tribes are a regulator to which attention must be paid.”
Elsewhere, the two authors chart how the Navajo Nation, America’s largest, bordering Arizona, New Mexico and Utah, decisively acted to control the geologically endowed 17.6 million acres of land where they live. In particular, the tribe of 300,000 banned future uranium mining over environmental concerns while—with 50% unemployment—it formed a holding company to acquire the Navajo coal mine from BHP Billiton in Q4 2013.
Similarly impoverished, Montana’s Crow Nation successfully reduced its dependence on the Absaloka mine, operated by Westmoreland Resources Inc., by lobbying Cloud Peak Energy to relocate off-reservation operations onto the tribal land. Following Q3 2013 approval, production is forecast at 15 million tons per year, alongside $85 million in royalties and 1,000 jobs.
But Brossy and Kolerok’s work, while almost entirely U.S. focused, also speaks to international issues including advocacy efforts by the London-based International Council of Mining and Minerals (ICMM) for social and environmental functions. U.S. ratification of the U.N. Declaration on the Rights of Indigenous Peoples containing Free Prior and Informed Consent (FPIC) principles gets mention as well.
Beyond these, also applicable in a global setting, is the role nongovernmental organizations (NGOs) and environmental activist groups have in the equation—for both good and bad. And while companies, tribes, and environmentalists may not always concur on issues like ecological expertise, water and food access, among others, the paper noted them as “key touch points for alliance-building and negotiation.”
Then there are NGO obstructionists again, by no means a strictly U.S. phenomenon—and perhaps one of the defining issues of modern-day mining CSR. “Groups predicated on resistance are the most problematic for corporate-tribal communication and negotiation,” said the authors. “They are the most complicated for companies and tribes.”
With the proliferation of fast-evolving social media networks and, more recently, handheld digital technology, information—including disruptive protests—can spread like wildfire. And mining companies, justly and unjustly, will likely continue paying the price the world over for many years.
Indeed, despite its domestic focus, one of the paper’s great understatements lies among its universal conclusion regarding indigenous groups: “Trust is a process that needs constant reinforcement—particularly with communities who over the past few centuries have endured innumerable violations of treaty obligations by governing authorities.”