As Canada weighs up mining development in Ontario’s Ring of Fire region, Sarah LaBrecque reports on how it is becoming a test case for the principle of whether affected communities have the right to say no
Something has happened on Canadian roads in the last few years. They’ve become quieter. As more people purchase hybrid or electrically powered vehicles, the rev of combustion engines is giving way to the hush of lower-carbon alternatives.
About one in 20 new cars on Canadian roads last year was battery electric, plug-in hybrid electric or powered by hydrogen fuel cells. And this trend is set to continue. Canada will ban the sale of new fuel-powered cars and light-duty trucks from 2035, one of many countries to enact such a ruling. So it seems things are set to get even quieter on Canadian roads.
But it’s a different story for the traditional communities who are on the front line of the global boom in demand for minerals such as lithium, copper, cobalt and nickel – critical components in keeping Canadians, and the rest of the world, supplied with electric vehicles (EVs), solar panels and other technologies needed for the energy transition.
In the U.S., 97% of nickel, 89% of copper, 79% percent of lithium and 68% of cobalt are located within 35 miles of native American reservations
In many parts of the world, the green transition is leading to rising decibels of concern from communities whose territories are home to a significant proportion of “green” minerals. In the United States, for example, a recent report by MSCI found that among energy transition metals, 97% of nickel, 89% of copper, 79% percent of lithium and 68% of cobalt are located within 35 miles of native American reservations.
In Peru, local communities continue to protest against copper mine Las Bambas, which supplies 2% of global copper and has been closed for more than 400 days since opening in 2016, due to blockades.
In Brazil, two pending bills by Jair Bolsonaro’s government would open up indigenous territory to industrial mining companies, resulting in the destruction of 16 million hectares of Amazon rainforest, an area larger than England, according to a report by Amazon Watch.
There are currently 225 active applications from companies such as Vale and Anglo American, who have a significant stake in the minerals needed for EV batteries.
Meanwhile, in Ecuador, a ruling that is being hailed as precedent-setting was passed by the country’s Constitutional Court in February: mining and extractive companies need to obtain free, prior and informed consent (FPIC) from indigenous groups, as well as consult with them, if mining activity affects any of their lands. The country will reportedly open four new mines by 2025, among them the Cascabel, which could become the sixth-largest copper mine in the world.
And these battles are set to multiply. According to the International Energy Agency (IEA), the production of the minerals required for the green transition will need to quadruple over the next two decades to achieve the Paris Agreement target of limiting warming to “well below” 2 degrees Celsius. The World Bank even goes so far as to say that the production of these minerals could increase 500 times by 2050, to meet growing demand.
At the heart of many of the struggles between mining companies and indigenous groups is the issue of consent, or lack thereof. While some countries, such as Ecuador, are pioneering legislation that is ruling clearly in favour of indigenous communities in terms of their right to FPIC, elsewhere, there is some catching up to do.
Nothing is giving me confidence that Canada is going to meet the necessary high standards with respect to protecting the peatlands or indigenous rights
Canada, for example, has recently signed into law the United Nations Declaration on the Rights of Indigenous People’s Act (UNDRIP), under which FPIC is a key principle. But in most cases, it has yet to be meaningfully incorporated into mining projects in the country.
As well as differing opinions as to what FPIC actually means for various stakeholders, there is a question around who is responsible for implementing it. The federal government in Ottawa doesn’t have jurisdiction to pass laws about resource management. This lies instead with the provinces, says Dayna N Scott, research chair in environmental law and justice in the green economy at York University in Toronto.
Scott is an expert on the Ring of Fire, a proposed development located 540km north of Thunder Bay, Ontario. The area, which spans about 5,000 sq kms and is rich in mineral deposits, has been described by Ontario’s premier Doug Ford as key to developing the province’s electric vehicle industry.
“We’re seeing indigenous rights questions and issues really coming to the fore in the Ring of Fire,” says Scott, as well as questions about the preservation of the area's peatlands, or “breathing lands”, as they’re known by the indigenous peoples of the region.
“But nothing about the way the situation is playing out is giving me confidence that Canada is going to meet the high standards (that are necessary) with respect to protecting the peatlands or indigenous rights,” she says.
Environment and indigenous groups have warned that mining exploration and development would take place “in the middle of the world’s second largest peatland complex in northern latitudes”, and have significant health impacts on the First Nations communities of Matawa and Mushkegowuk, who are living near the proposed mines.
The government and the courts have been saying indigenous peoples don’t have a veto over resource projects. But that is not indigenous people’s interpretation of FPIC
At the time of writing, the consultation period to comment on a draft agreement to conduct a regional assessment of the Ring of Fire development had just concluded. The assessment would evaluate impacts on animal populations, surface and groundwater, and cultural and socio-economic impacts on indigenous groups. But what’s missing, according to some of those affected, is an indigenous governing body that would participate in decision-making.
In January, four of the affected communities responded to the draft, stating that it was “narrow in geographic activity and scope and wrongly excludes us indigenous peoples from all but token roles”.
Scott believes that neither the province of Ontario, nor the federal government is “unequivocally committing” to the standard of free, prior and informed consent.
“Both the government and the courts have been saying that indigenous peoples don’t have a veto over resource projects,” Scott continues. “But that is not indigenous people’s interpretation of what the FPIC standard is.” Such an interpretation would include longer-term questions about their vision for their lands, for example, and also, simply, that they have the right to say no.
But could what’s playing out in Ecuador – where, by law, indigenous groups now do have the right to oppose projects – have an influence in Canada and elsewhere around the world?
Kate Horner is the acting executive director at Amazon Frontlines, which works to help indigenous communities in the Amazon rainforest to defend their rights to land, life and cultural survival. “FPIC is something that has been recognised in international law for a long time. (But) we are in the early stages of really starting to develop the national jurisprudence that will breathe life into this critical legal tool for indigenous peoples,” she says.
In other words, countries like Canada seem to be stuck in a hamster wheel of not knowing how to implement it, and which arm of government is responsible for doing so. In Ecuador, where the highest court has ruled that FPIC must be adhered to, both by government and business, things are rather more clear-cut. And there could be a ripple effect.
There's a growing recognition that stewardship of their lands and resources is both an effective and necessary climate strategy
The victory in February, she says, “represents a massive power shift, certainly in the context of Ecuador, but more importantly, it signals growing momentum around the world to recognise this particular right.” With 50% of the world's lands, and more than 80% of biodiversity, managed by indigenous groups, Horner says, “there's a growing recognition that stewardship of their lands and resources is both an effective and necessary climate strategy”.
But what happens if permission is not granted? If indigenous groups say “no” to projects to mine the minerals needed to run EVs or manufacture renewable technologies.
It’s a question posed by Mark Podlasly, a member of British Columbia’s Nlaka’pamux Nation and the director of economic policy at the First Nations Major Projects Coalition in Canada. The organisation works with First Nations communities to realise the economic benefits of proposed infrastructure projects – anything from hydroelectric dams to mines, pipelines or transportation links – that might cross their lands.
“The mission of the coalition is to ensure that there is a culturally appropriate voice at the table in terms of the economics,” he says, which generally means developing an equity position. They also negotiate to ensure environmental considerations are taken at the planning, impact and operation stages of a project. In effect, they help communities say “yes”, but under fair and equitable terms. If a community has agreed to a share of equity, they consider consent, in effect, to have been given.
“We are a pro-smart development,” explains Podlasly. “That means it has to be aligned with First Nations values and aspirations. In the past that has not happened. (Developments) were simply imposed on us.”
Podlasly uses the past tense but for the communities near the proposed Ring of Fire development, and those currently fighting for land rights across South America, the imposition appears to continue, energy transition or none.
Indeed, without a habitable, self-regulating climate – a liveable planet – an electric car is not much use.
New mining standard to safeguard indigenous rights
“We’re seeing so much activity,” says Aimee Boulanger, executive director of the Initiative for Responsible Mining Assurance (IRMA), speaking about the level of interest from companies involved in sectors needed to fuel the energy transition. The organisation, founded in 2006 by a coalition of non-governmental organisations (NGOs), businesses, affected communities, mining companies and labour unions, provides third-party verification and certification against a standard that assesses mines for their social and environmental responsibility. Boulanger describes IRMA as “the globe’s most comprehensive (assessment programme) by breadth of issues”, with a “rigorous definition” of what constitutes environmental and socially responsible mining.
IRMA was initially led by the jewellery sector, particularly Tiffany & Co, followed by the electronics industry, including Fairphone and Microsoft. But now, Boulanger says, automakers and energy companies are playing a leading role
BMW joined IRMA two years ago, and Daimler (which makes Mercedes), Ford Motor Company and General Motors have followed suit. Wind energy firm Orsted, Anglo American, and lithium miner Albemarle are also members.
“The auto sector coming in with this attention on electric vehicles, and now energy sector companies too – this has completely changed the whole discussion, because they buy the volumes.”
While IRMA primarily assesses mines that are already in operation, they are acutely aware that prior and informed consent should be obtained from affected indigenous groups well before ground is broken. Two of their 12 board members come from indigenous rights organisations and a further two represent NGOs Human Rights Watch and Earthworks.
In this vein, IRMA is in the process of developing an “IRMA-ready” standard, which would help companies assess whether a proposed project would meet high standards were it to go ahead. Questions would include those around FPIC, if the mine was designed for closure once it reached end of life, and impacts on water and wildlife, says Boulanger.
The standard is currently out for public review, originally scheduled to last 60 days, but now extended for five months, due to the complexity of what’s at stake. One of the challenges is around ensuring that an ‘IRMA-ready’ mine would continue to uphold all the high standards it said it would adhere to, once in operations. Indeed, says Boulanger, “How do you audit a promise?”
Sarah LaBrecque is a freelance writer who splits her time between Ottawa, Canada, and Hertfordshire. She writes about sustainable business and ethical living for publications such as the Guardian, Positive News, and for a range of B2B clients.
This article is part of The Ethical Corporation’s March 2022 Energy Transition briefing: See also:
electric vehicles Transition minerals indigenous land mining FPIC First Nations communities Amazon Frontlines IRMA