Human Rights Assessment
2. Mining in Nunavut – Full Finding
The Mary River mine is not the first mine to developed in Nunavut, nor will it be the last. Mining projects in Nunavut are becoming increasingly feasible from a technological and economic point of view. Climate change will make mining and resource development more attractive and accessible. The Nunavut Land Claims Agreement provides important protections for Inuit rights in the context of mining, including their right to benefit from the exploitation of natural resources on their lands and territories. The context of mining in Nunavut helps to remind us that the success of the Mary River project is not just the responsibility of the Baffinland company. It includes the different levels of government and the Designated Inuit Organizations.
Nunavut: A “Rising Star” in Mining
According to the Mining Journal, Nunavut is a “Rising Star” in the mining sector:
Mining holds great promise to help pave the way to Nunavut’s economic self-reliance. Mineral production from its first mine already accounts for nearly a fifth of the gross domestic product. More than C$395 million was spent on exploration and development in 2011. With additional investments in mineral exploration, the Nunavut mining industry boosted real GDP by 3.3% in 2011. In comparison, the public sector grew moderately by only 1.9%, despite making up over 40% of the economy.
These investments present significant training and employment opportunities. It is estimated several thousand jobs will emerge over the coming years, making the mining industry Nunavut’s largest private-sector employer. As well, the government recognises the substantial role that the minerals industry plays in developing Nunavut’s infrastructure. With new transportation networks such as roads, port facilities, and airstrips, Nunavut will be able to provide easier and cheaper access to not only support expanding exploration programmes and new mining development, but also lower the cost of living for communities.
Legal regime for mining
In Canada, surface rights and mineral rights came with the purchase of land until some time in the early 1900s, depending on the jurisdiction. Since then, mineral rights have been government-owned and cannot be purchased, but only leased, by individuals or companies. As a result, the mineral rights on more than 90% of Canada’s land are currently owned by governments.
Where mineral rights are privately owned, they can be sold independently of surface rights, so that surface and mineral rights on the same property can be held by different owners.
As per the Canadian Constitution, the regulation of mining activities on publicly owned mineral leases falls under provincial/territorial government jurisdiction. Thus, there is separate mining rights legislation for each of the thirteen Canadian jurisdictions except Nunavut.
Nunavut mining and exploration activities are regulated by the Department of Aboriginal Affairs and Northern Development. However, as part of the Nunavut Land Claims Agreement, the mineral rights for about 10% of Nunavut have been turned over to the Inuit community. These lands comprise large blocks that scatter throughout Nunavut. The Inuit community set the rules and regulations in those blocks that are not under federal jurisdiction.
The Mary River Mine is one of the blocks that have been turned over to the Inuit as part of the Nunavut Land Claims Agreement.
Source: General mineral rights regime in Canada: http://www.nrcan.gc.ca/minerals-metals/policy/legislation-regulations/3707
Mining as part of Canada’s Northern Strategy
The priorities of Canada’s Northern Strategy, released in 2009, include:
• Exercising our Arctic sovereignty
• Promoting social and economic development
• Protecting our environmental heritage
• Improving and devolving northern governance
The Government of Canada is introducing measures to ensure that regulatory systems across the North protect the environment in a predictable, effective and efficient manner. Efforts such as the Northern Regulatory Improvement Initiative are helping resolve the complex approval process for development projects, to ensure new projects can get up and running quickly and efficiently.
Mining activities and major projects such as the Mackenzie Gas Project are the cornerstones of sustained economic activity in the North and the key to building prosperous Aboriginal and Northern communities. Diamond mining in the North is now a $2-billion-per-year industry, which is about half of the economy of the Northwest Territories. The Mackenzie Gas Project – now estimated at over $16 billion – will provide direct benefits to Aboriginal communities through the development of a new model for Aboriginal participation.
The Aboriginal Pipeline Group will provide for Aboriginal participation in the developing economy, notably through an ownership position in the Project. In addition to on-shore exploration and development there is renewed interest in the off-shore, including a new era of oil and gas exploration in the deeper waters of the Beaufort Sea. Canada will continue to support the sustainable development of these strategic resource endowments.
The large-scale projects already underway barely scratch the surface of the North’s immense store of mineral, petroleum, hydro and ocean resources. However, the full extent of the natural resources potential in the Arctic is still unknown. The Government of Canada announced a significant new geo-mapping effort – Geo-Mapping for energy and Minerals – that will combine the latest technology and geoscientific analysis methodsto build our understanding of the geology of Canada’s North, including in the Canadian Arctic Archipelago. The results of this work will highlight areas of mineral and petroleum potential, lead to more effective private sector exploration investment and create employment opportunities in the North.
Source: Government of Canada Northern Strategy (2009): http://www.northernstrategy.gc.ca/cns/cns.pdf
Changes to Regulatory Regimes
There have been changes to the regulatory regimes that affect resource development across Canada.
In particular significant public attention was given to revisions to the Canada Environmental Assessment Act, 2012 aimed at streamlining environmental impact review processes. While this change does not affect the impact review process of the Mary River Mine, which began in 2008, it does signal a larger shift in approach to regulation of major resource development projects.
In the north, there has been another on-going initiative to streamline regulatory processes for resource development called the “Northern Regulatory Improvement Initiative.” This regulatory reform process is leading to changes to the policies and timeframes under which future mining projects will be reviewed and approved.
Nunavut Land Claims Agreement
The Nunavut Land Claims Agreement provides important protections for Inuit rights in the context of mining, including their right to benefit from the exploitation of natural resources on their lands and territories:
• Some portions of the territory have been designated as Inuit-Owned Lands, meaning that Inuit own the sub-surface mineral rights and receive the royalties when the minerals are extracted. The main deposit at Mary River is on Inuit-Owned Lands.
• The Nunavut Impact Review Board was created to conduct reviews, public hearings and make recommendations about measures to protect Inuit and Nunavummiut from adverse environmental and social impacts of mining projects. The review of the Mary River mine began in 2008 and will continue this summer and fall with respect to the Early Revenue Phase.
• There is a requirement that all major development projects are subject to Inuit Impact Benefit Agreements, which are negotiated between the regional Designated Inuit Organization and the developer of a mine. The Qikiqtani Inuit Association is currently in negotiation of an IIBA with the Baffinland company.
“Inuit were once on the outside of the mining industry looking in. The signing of the [Nunavut Land Claims] Agreement changed all that. Now, for many reasons, we feel we feel we can be considered part of the mining industry and that we are no longer on the outside. Here are some of the reasons I say that:
• Inuit hold land with both surface and mineral rights;
• Inuit make agreements with exploration and mining companies and individuals for mineral rights to some of the most prospective land in Nunavut;
• Inuit sit on boards which screen and review projects;
• Inuit collect royalties from any mining project;
• Inuit enter into Impact and Benefit Agreements for all major developments on Inuit Owned Lands or consult on benefit plans for developments on Crown land;
• Inuit development corporations provide goods and services for exploration and mining projects; and, finally,
• many Inuit work directly on projects or for businesses which provide goods and services to the projects.”
Nunavut Impact Review Board
The Nunavut Impact Review Board is an environmental assessment agency, established under Articles 10 and 12 of the Nunavut Land Claims Agreement. The Board determines whether development projects proposed for the Nunavut Settlement Area (NSA) should proceed and, if so, under what terms and conditions. The primary objectives of the Board are to protect and promote the existing and future well being of the residents and communities of the NSA, and to protect the ecosystem integrity of the settlement area. The Minister of Indian Affairs and Northern Development has the overriding authority to approve or reject projects in national or regional interest.
The Board consists of nine members, including a Chair. In consultation with the Government of Nunavut, the Minister appoints the Chair from nominations agreed to and provided by the members. Nunavut Tunngavik Incorporated nominates four members for appointment by the Minister. One or more federal ministers appoints two members. The Government of Nunavut appoints two members directly to the Board.
Nunavut Tunngavit Inc.’s Mining Policy
The objectives of NTI’s mining policy are to:
• Minimize The Negative Impacts: Ensure that exploration and mining will be planned and carried out in a way which will have the least possible impact on the environment, wildlife, habitat, and on the lives and culture of Inuit.
• Maximize The Benefits Of Mining To Inuit: Ensure that to the greatest extent possible, the benefits of mining will remain in Nunavut, both in Nunavut as a whole and in the local communities that are impacted.
• Attract Mining Investment: Promote the development of a political and economic climate which will encourage the mining industry to invest.
• Resolve Land Use Conflicts: Promote certainty and clarify for land access and resolve land use conflicts.
• Improve Consultation and Clarify Decision Making: Improve communications, consultation and coordination among all of the stakeholders and clarify the decision-making process
Despite these protections in the Nunavut Land Claims Agreement, there are some concerns about the future of mining in Nunavut:
• As the Government of Canada works to streamline environmental and social review processes, will the NIRB be able to conduct as rigorous impact assessments for future mining projects as it did for the Mary River mine?
• If there are numerous projects that are developed at the same time, will the NIRB have the capacity to conduct simultaneous reviews—while also fulfilling its responsibilities to monitor the implementation of the Mary River project certificate?
• As Mary River and other mines begin to generate revenues and profits, how will the economic and other benefits be allocated at the community level?
The context of mining in Nunavut helps to remind us that the success of the Mary River project is not just the responsibility of the Baffinland company. It includes the different levels of government and the Designated Inuit Organizations. In our human rights impact assessment, we provide recommendations for all of these actors to ensure that the mine respects human rights.
Mining Journal, Supplement on Nunavut, “Canada’s Rising Star” (2012): http://www.mining-journal.com/__data/assets/supplement_file_attachment/0005/324149/Nunavut2012scr.pdf
Source: General mineral rights regime in Canada: http://www.nrcan.gc.ca/minerals-metals/policy/legislation-regulations/3707
Government of Canada Mineral and Metals Policy (1996): http://www.nrcan.gc.ca/minerals-metals/policy/bulletin/minerals-metals-policy/2928
Government of Canada Northern Strategy (2009): http://www.northernstrategy.gc.ca/cns/cns.pdf
Revision to Canada’s Environmental Assessment Act: http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=16254939-1
Presentation on the Northern Regulatory Improvement Initiative: http://www.nunavutminingsymposium.ca/wp-content/uploads/2009/06/steven-trainer-330pm.pdf
Government of Nunavut’s uranium mining policy statement: http://www.uranium.gov.nu.ca/