980 9TH STREET SUITE 1400 SACRAMENTO, CA 95814 TEL 916.382.4377 FAX 916.382.4380 WWW. HTHJLAW. COM From Te-Moak Tribe to Tsilhqot in Nation: Sacred Landscape Protection and Resource Development Harrison, Temblador, Hungerford & Johnson LLP This paper was written for the Society for Mining, Metallurgy, and Exploration s Critical Minerals 2014: Rare Earths and Beyond conference, held in Denver, Colorado, August 3-5, 2014. Abstract. Native American cultural resources (i.e., burial sites, prehistoric settlements, human remains, ancient trails, grinding rocks and similar) have been protected from development in various respects for decades in both Canada and the United States. But for the most part, these protections have focused on specific resources or sites, such as a distinct burial ground or a distinct grinding rock. The litigants in two recent cases, Te- Moak Tribe of Western Shoshone of Nevada v. U.S. Department of Interior (United States 9 th Circuit Court of Appeals 2010) 608 F.3d 592 (Te-Moak Tribe) and Tsilhqot in Nation v. British Columbia (Supreme Court of Canada 2014) 2014 SCC 44 (Tsilhqot in Nation) both challenged the legal norm and instead sought much broader protections across an entire landscape deemed culturally significant. Te-Moak involved mineral exploration, and Tsilhqot in Nation involved a logging license. Although the laws under which the two cases were litigated are not perfect analogs, the Canadian court and the U.S. court reached different conclusions: Tsilhqot in Nation accepted the notion of a protected landscape, while Te-Moak did not. This paper provides an introduction to the key cultural resources protection laws in the United States and Canada, and discusses those laws application in the Te-Moak Tribe and Tsilhqot in Nation cases, respectively. This paper then discusses the general international trend over time toward granting more expansive protections to cultural resources rather than less, and provides several examples of how this trend proved a barrier to proposed mining projects. This paper concludes with certain recommendations for mine developers and operators on how to avoid cultural resources conflicts for proposed mining projects.
1. Introduction Most countries recognize the value of and have taken measures to protect cultural and historical sites, artifacts and resources from the pressures of resource and other development. UNESCO World Heritage sites are representative of this shared global mindset. The recognition of cultural and historical features and the best measures to protect them can be complex, but all the more so in countries such as Canada, the United States, Australia, Mexico, Brazil and others, in which aboriginal peoples were displaced by foreign settlers. These countries have grappled with the question of how best to acknowledge and protect aboriginal sites, artifacts and history without impeding on property rights that have arisen post-settlement. Looking at the United States and Canada in particular, changing social mores have resulted in greater recognition and protection of aboriginal 1 land rights and culturally significant sites. These values are reflected in particular laws and in the court cases that have interpreted those laws over time. Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Department of Interior (United States 9 th Circuit Court of Appeals 2010) 608 F.3d 592 (Te-Moak Tribe) and Tsilhqot in Nation v. British Columbia (Supreme Court of Canada 2014) 2014 SCC 44 (Tsilhqot in Nation) are important recent cases that illustrate the general trend toward more expansive protection of cultural resources in the face of resource development. In particular, landscape -level protection seems to be the trend s terminus. More expansive protection for aboriginal cultural resources and landscapes, especially at the landscape level, presents weighty policy questions for governments, considering that numerous examples show that such protections come at the cost of mineral resource development and the resulting social and economic benefits. Those questions are not addressed here. Instead, this paper discusses how mine operators and developers can use their knowledge of this trend to avoid intractable cultural resources conflicts for proposed projects. 2. Cultural Resources Laws in the United States and Canada In both the U.S. and Canada, cultural resources laws generally apply when private enterprise seeks to develop non-reservation or tribal lands, and some sort of federal approval is required. The key laws in each country are discussed below. 1 / The terms Native American and Aboriginal are used interchangeably. Native American is the common term in the United States, whereas Aboriginal is commonly used in Canada, Australia, and other countries. Page 2 of 15
United States National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq. [ NHPA ]). The NHPA governs the activities of federal agencies, including project approvals on federal lands. The NHPA is intended to preserve historic and cultural resources, including Native American resources. (See 16 U.S.C. 470a(d)(1)(A); National Indian Youth Council v. Watt, 664 F.2d 220, 226 (10th Cir. 1981).) The NHPA authorizes the U.S. Secretary of the Interior to maintain a National Register of Historic Places ( National Register ) for districts, sites, buildings, structures, and objects that are significant in American history, architecture, archeology, engineering and culture. (16 U.S.C. 470(a)(1)(A).) Section 106 of the NHPA requires federal agencies to consider the effects of their actions on such features to the extent that they are listed in the National Register, or eligible for listing. (16 U.S.C. 470f.) Federal regulations establish a multi-step consultation process for identifying historic properties, determining their eligibility for the National Register, assessing the action s potential effects on eligible properties, and avoiding or mitigating adverse effects. These steps are taken in consultation with a cast of consulting parties that include the State Historic Preservation Officer (SHPO), a Tribal Historic Preservation Officer ( THPO ), and the Advisory Council on Historic Preservation, a federal agency created by the NHPA and charged with providing advice on preservation matters. (36 C.F.R. 800.2(c).) Where Native American resources exist, tribes are entitled to special consideration in the consulting process. (Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Department of the Interior (2010) 755 F.Supp.2d 1104, 1109; see also 36 C.F.R. 800.2(c)(2)(ii).) The consulting process is mandatory for federal agencies. (See Pit River Tribe v. U.S. Forest Service (9th Cir. 2006) 469 F.3d 768, 787; Muckleshoot Indian Tribe v. U.S. Forest Service (9th Cir. 1999) 177 F.3d 800, 805.) National Environmental Policy Act (42 U.S.C. 4321 et seq. [ NEPA ]). NEPA requires environmental review and analysis of major Federal action significantly affecting the quality of the human environment. (42 U.S.C. 4332(2)(C).) NEPA imposes a review process intended to ensure that a federal agency will have detailed information on significant environmental impacts when it makes its decisions. NEPA requires a federal agency to make this information available to the public for review and comment. (Inland Empire Public Lands Council v. U.S. Forest Service (9th Cir. 1996) 88 F.3d 754, 758.) Early consultation with any potentially affected Native American tribes is a critical step in the NEPA process, and an express requirement of NEPA s implementing regulations (40 C.F.R. 1501.7(a)(1), 1501.2(d)) which has been recognized and enforced by the courts. (See Pit River Tribe v. U.S. Forest Service (9th Cir. 2006) 469 Page 3 of 15
F.3d 768, 785-86.) Individual federal agencies, such as the Bureau of Land Management ( BLM ), the U.S. agency that administers and permits uses on public lands, also may provide internal guidance. The BLM s NEPA Handbook, for instance, instructs that Tribal consultation centers on established government-to-government relationships, and it is important that you allow sufficient time and use the appropriate means of contacting tribes when conducting scoping. (BLM NEPA Handbook, 6.3.2.) Generally, consultation under NEPA requires an agency to notify a tribe or tribal community of a proposed project and its possible effects, and secure input from the tribal communities. To avoid the duplicative processes that would occur where both NEPA and the NHPA apply, the NHPA regulations expressly allow a federal agency to use the NEPA process in lieu of the Section 106 process for assessing impacts on historical resources provided that certain standards are met. (36 C.F.R. 800.8(c).) Canada Historic Sites and Monuments Act (R.S.C, 1985, c. H-4 [ HSMA ]. The HSMA, similar to the United States NHPA, provides for the recognition and preservation of historic places, which may include a site, building or other place of national historic interest or significance. (R.S.C., 1985, c. H-4, s. 2.) The HSMA is administered by the Historic Sites and Monuments Board of Canada ( HSMBC ). The HSMBC has, since its creation in 1919, designated more than 2,000 historic places. In recent years, the HSMBC has focused on more closely on Native American cultural sites and history. Canadian Environmental Assessment Act, 2012 (S.C. 2012, c. 19, s. 52 [ CEAA ]). The CEAA generally requires an environmental assessment to be prepared for certain designated projects, either conducted directly by the federal government or that involve federal funding, federal land, or federal approvals. The list of designated projects subject to the review process expressly includes the construction, operation, decommissioning and abandonment of a new... rare earth element mine or gold mine, other than a placer mine, with an ore production capacity of 600 t/day or more. (Regulations Designating Physical Activities, SOR/2012-147, s. 16(c).) Like the U.S. NEPA, the obligation to consult with Native Americans is a requirement of the CEAA. The CEAA, in fact, defines as an environmental effect that must be assessed any effect with respect to Native Americans that may be caused to the environment on (i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current use of lands and resources for traditional purposes, or (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. (S.C. 2012, c. 19, s. 52(5)(c).) Page 4 of 15
Section 35 of the Constitution Act, 1982. While the Canadian HSMA and CEAA are roughly analogous to the United States NHPA and NEPA, Canadian law differs from U.S. law in that the duty to consult with Native Americans is also articulated directly in the Canadian constitution. Section 35 of the Constitution Act, 1982, establishes the common law duty to consult with Native Americans concerning government actions that could adversely impact aboriginal and treaty rights. Section 35 provides as follows: 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, Aboriginal Peoples of Canada includes the Indian, Inuit and Metis peoples of Canada. (3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. The Canadian courts have interpreted Section 35 to mean that the Canadian government s title to land is burdened by the pre-existing legal right of Aboriginal people based on their use and occupation of the land prior to European arrival. (Tsilhqot in Nation, 12.) The aboriginals legal interest in their traditional lands give rise to a fiduciary duty on the part of the Canadian government to protect and preserve the land and the underlying rights. With this legal framework in mind, we turn to the Te-Moak Tribe and Tsilhqot in Nation cases directly. 3. Te-Moak Tribe This case involved a proposal to conduct a phased mineral exploration program on federal land in northeastern Nevada, U.S. (the Project ). The Project was proposed in a region that was already heavily disturbed by mining activities and active mining operations. The U.S. BLM, which permits and oversees mining operations on federal lands, conducted environmental review as required by NEPA. As the Court observed, [a]lthough miners have been mining this area for generations, Native Americans have been there much longer. One peak within the Project area, known as Mount Tenabo, figured significantly in Te-Moak tribal history and Page 5 of 15
culture. The Project area also contained other tribal cultural features, such as pinyon pine trees and burial grounds, of great significance to the tribe. In the course of its NEPA environmental review, the BLM consulted with the Tribe under NEPA and the NHPA concerning sites of cultural and religious significance within the Project area. The BLM designated two sites in particular as Properties of Cultural and Religious Importance or PCRIs, eligible for inclusion in the U.S. National Register. The BLM inquired with the Tribe regarding additional concerns regarding the Project, but received no response. The BLM proceeded to conclude its NEPA review and approve the Project. Among other arguments relating to the BLM s compliance with NEPA, NHPA and other federal laws, the Tribe alleged that the BLM violated Section 106 of the NHPA by failing to take into account the effect of [an] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register [of Historic Places]. (Te-Moak Tribe, 608 F.3d at 607; 16 U.S.C. 470f.) As noted above, the NHPA Section 106 process requires an agency to make a reasonable and good faith effort to identify historic properties; determine whether identified properties are eligible for listing on the National Register...; assess the effects of the undertaking on any eligible historic properties found; determine whether the effect will be adverse; and avoid or mitigate any adverse effects. (Muckleshoot Indian Tribe v. U.S. Forest Serv. (9th Cir. 1999) 177 F.3d 800, 805.) More specifically, the Tribe argued that the eligible PCRIs are of a landscapescale, rather than discrete sites, and that the BLM failed to take measures to protect the entire landscape that the Tribe deemed culturally significant. In other words, the Tribe asserted that mitigations were required, and development should be prohibited in, the entire landscapes that may contain eligible or listed PCRIs. Figure 1 illustrates the Tribe s landscape, outlined in purple, in relation the Project area, which is outlined in black. The purple boundary line represents the Cumulative Effects Study Area ( CESA ), which is determined by the distribution of specific cultural features in the area immediately surrounding the project, which is represented by the black boundary line. Clearly, the CESA dwarfs the project area, and if granted protection as sought by the Tribe, could foreclose future mineral development in the area. Page 6 of 15
Figure 1. Te-Moak Tribe Cumulative Effects Study Area Illustration 2 The U.S. Ninth Circuit Court of Appeals rejected the Tribe s argument. The Court acknowledged that the PCRIs designated by the BLM as eligible for the National Register encompass large areas of land. (Te-Moak Tribe, 608 F.3d at 611.) The Court held, however, that the NHPA does not require that all parts of an eligible PCRI be protected. (Ibid.) Instead, the NHPA requires protection against adverse effects on the specific features within the broader cultural landscape. For the Tribe, this meant pinyon pine nut harvesting areas, burial sites, and specific spiritual and religious use areas that the BLM had already recognized and protected. In summary, the Court held that protection of landscapes is beyond the scope of the NHPA and NEPA, notwithstanding the fact that the landscapes may have cultural signfiicance. 2 / Cortez Hills Expansion Project Final Environmental Impact Statement, United States Bureau of Land Management, September 2008 (NVN-067575, NV063-EIS06-011), p. 3.9-31. Page 7 of 15
4. Tsilhqot in Nation This case, which was decided on June 26, 2014, is rooted in a dispute that had been simmering since approximately 1983. In that year, the Province of British Columbia granted a forest license to log within a region subject ot an unresolved land claim by the Tsilhqot in Nation. The region was public land, similar to the land at issue in the Te-Moak case. As the Canadian Supreme Court notes, [t]hroughout most of Canada, the Crown entered into treaties whereby the indigenous people gave up their claim to land in exchange for reservations and other promises, but, with minor exceptions, this did not happen in British Columbia. (Tsilhqot in Nation, 4.) The Tsilhqot in Nation s claim, which was approximatey five percent of their traditional territory, still amounted to nearly 1,200 square miles, occupied by approximatley 200 individuals. The Nation presented evidence, in the form of physical evidence and evidence presented by Nation elders and historians, concerning their continuous and exclusive occupation of the claimed land. The lower trial court, after a five year procedure, recognized the Nation s claim across more than 600 square miles, but declined to grant the Nation title due to a procedural defect. The Tsilhqot in Nation appealed the trial court s decision. On appeal, the British Columbia Court of Appeal rejected the Nation s land claim outright, but left open the possibility that in the future, the Tsilhqot in might be able to prove title to specific sites within the area claimed. (2012 BCCA 285 [2012], 33 B.C.L.R. (5th) 260.) Whereas U.S. laws mandates measures to protect certain cultural resources, the U.S. does not have a legal analog to Canada s section 35 of the Constitution Act, 1982. That provision, as it has been fleshed out in subsequent court decisions, recognizes the pre-existing legal right of Aboriginal people based on their use and occupation of the land prior to European arrival. Unlike other countries, such as Australia, Canada never recognized the legal doctrine of terra nullius, which holds that no person owned land prior to the establishment of European sovereign rule. Thus, under Canadian law, Canadian public lands are subject to Aboriginal claims to prior title. On appeal yet again, the Canadian Supreme Court examined a number of criteria in evaluating the Nation s land claim, and among these, the Court analyzed the Nation s occupation of the land. The Court of Appeal below rejected the notion that title to a larger territory could be established not only by specific village sites or other distinct features, but by regular use for hunting, fishing and other activities, and instead required a showing of site-specific occupation. The Supreme Court in turn rejected this approach, and held that fishing, trapping, and foraging could be sufficient to establish occupation of claimed land, and in fact was sufficient in the Nation s case. Ultimately, the Court accepted the Nation s claim across a region whose boundaries were supported by a large Page 8 of 15
number of individual sites, combined with evidence of hunting, fishing and other activities across a broader area. Figure 2. Tsilhqot in Nation Proven Title Area Page 9 of 15
5. Discussion Te-Moak Tribe and Tsilhqot in Nation both involve tribal claims concerning the cultural signfiicance of a broad swath of public land. The U.S. Court, interpreting the particular laws under which the lawsuit was filed, the NHPA and NEPA, reached the conclusion that the U.S. federal government was not required to protect a culturallysignificant landscape, but only distinct features within the landscape. The Canadian Court, interpreting its own particular laws, reached the opposite conclusion, and determined that the Tsilhqot in Nation was entitled to the more than 600-square mile tract it claimed as its title lands. The Tsilhqot in Nation decision was immediately hailed as a landmark decision, one that radically changes the relationship between the Canadian government and First Nations. The practical impacts of the decision have become evident almost as quickly. On July 30, 2014, just over a month after the Canadian Supreme Court decided in its favor, the Tsilhqot in Nation released a draft Mining Policy for mining, reclamation and exploration projects within its newly-recognized title land. The document outlines the Nation s policy for reviewing and approving future mining projects, and, of course, for participating in the resulting revenue. The Nation also released a Territory Map (as part of its Stewardship Agreement between the Province of British Columbia and the Tsilhqot in Nation) identifying Engagement Zones requiring specified levels of engagement, review and approval by the Nation for resource development projects. Te-Moak Tribe, on the other hand, has not produced such distinct ripples in the legal landscape. The project at issue in Te-Moak Tribe proceeded, as have subsequent projects within the same or similar area in northeastern Nevada. No U.S. federal court has subsequently addressed the sacred landscape question. But the case has, perhaps, thrust the concept of landscape-level protection into the project review and approval conversation, both at the U.S. federal and state level. Page 10 of 15
Figure 3. Tsilhqot in Territory Map Accompanying Draft Mining Policy For example, in February 2014, the New Mexico State Supreme Court validated action by the New Mexico Cultural Properties Review Committee to designate as a Traditional Cultural Property approximately 400,000 acres around Mount Taylor, a portion of which was subject to proposed uranium mining projects. (See Rayellen Resources, Inc. et al, v. New Mexico Cultural Properties Review Committee (2014) 319 P.3d 639.) The California State Legislature, further, is currently considering legislation (Assembly Bill 52) that would grant Native American tribes broad consultation rights for all projects that require environmental review and that fall within a geographic area with which the tribe is traditionally and culturally affiliated. Assembly Bill 52 would also automatically require a project that may cause a substantial adverse change in the signficiance of a tribal cultural resource, whether officially listed or not, to undergo a full Page 11 of 15
environmental review process even if the project does not pose other significant threats to the environment. 3 Between historical treatment of aboriginal peoples, Te-Moak Tribe, Tsilhqot in Nation, and intervening events, the international trend has been toward greater recognition and protection of aboriginal cultural sites, even if protection of sacred landscapes has not yet become the norm. A number of key developments in this regard has been in response to proposed mining projects. For example, First Majestic Silver s La Luz Silver Project, located in San Luis Potosí state, Mexico, has been on hold for more than five years in the face of opposition based on the project s impacts to a region known as Wirikuta, a sacred site for the Huichol people. Despite efforts by First Majestic, a Canadian company, to address the Huichol people s concerns, the Mexican government has prohibited issuance of the permits needed to proceed. The Indian government, as another example, rejected a proposed bauxite mine in the Niyamgiri hills, an area considered sacred to the Dongria Kondh tribe. In many cases, such as in the Mount Taylor example from the state of New Mexico, landscape-level protection has been afforded at the cost of prohibiting mineral development outright. The concept of landscape-level protection raises the obvious question of limits and consistency with national mineral development objectives and economic goals. For example, the Te-Moak Tribe is part of the Western Shoshone, whose aboriginal territory is shown in Figure 4 below. This territory encompasses much of Nevada and parts of California, Utah and Idaho, and includes both federal and state public lands and private property. Within that territory lies significant reserves of numerous minerals, ranging from gold and silver to copper to barite, molybdenite and lithium compounds. Mineral development within this territory is already a multi-billion dollar economic engine and the source of thousands of jobs, with the potential for much more. 3 / Another notable example from California involves a proposed open-pit, cyanide heap-leach gold project proposed by Glamis Gold, Ltd. The project was proposed on approximately 1,500 acres in California s Imperial Valley desert. The project site contained more than 50 sites of cultural significance to the Quechan Indians, and was determined to be within a 130-mile long spiritual pathway. The project was stopped by a concerted action involving the California Governor and State Mining and Geology Board through emergency legislation and regulations that rendered the project economically infeasible. Page 12 of 15
Figure 4. Western Shoshone Aboriginal Territory 4 The Te-Moak Tribe and Tsilhqot in Nation cases both implicated public lands, but private lands may also be subject to the same pressures. The state of California s environmental review law, known as the California Environmental Quality Act ( CEQA ) already applies to projects proposed on private lands, and requires consultation with Native American tribes whose cultural sites may be affected by the project. Assembly Bill 52, as discussed above, is currently pending in the California Legislature and could vastly expand tribal consultation rights for projects proposed on 4 / Cortez Hills Expansion Project Final Environmental Impact Statement, United States Bureau of Land Management, September 2008 (NVN-067575, NV063-EIS06-011), p. 3.9-8. Page 13 of 15
private lands. California is, of course, home to the one of the largest and most important rare earth mines at Mountain Pass. 6. Conclusions and Recommendations The discussion above shows that, internationally, governments are trending toward more expansive protections for cultural resources, in place of distinct, sitespecific protections. Secondarily, cultural resources conflicts are being resolved in favor of the cultural resources at the cost of resource development projects. These are facts that mine operators and developers must take into account when exploring the feasibility of a new project. A proposed mining project involves many considerations, including the size and character of the reserve, financing, transport, permitting requirements and so forth. Cultural resources within a proposed project area demand the same level of investigation. Mine operators and developers should engage professionals to research and document the Native American/aboriginal characteristics of a proposed project site and the surrounding region. This should be done in the project planning stage, outside of the public process. Mine operators and developers should simultaneously research and understand the laws governing cultural resource protections and the permitting government s discretion to deny a project on the basis of impacts to cultural resources. This data should be used to inform and reach a decision regarding the likelihood for a cultural resources conflict to arise during a project s public review process. Where a potential cultural resources conflict exists, mine developers and operators are faced with three courses: abandon the project, negotiate with the impacted aboriginal group, or use available legal and governmental mechanisms to override the conflict. Discussing the last of these first, operators and developers should be wary of choosing to force a project to approval over cultural resources-based objections. While the feasibility of this course is context-dependent, even countries that have historically been less sensitive to cultural resources issues can be spurred to action under sufficient public pressure. As many mine operators and developers have experienced first-hand, social media platforms in particular enable project opponents to garner public attention rapidly. As discussed above, the track record for projects confronted with a significant cultural resources conflict is not good. Finally, while operators and developers may chafe at the notion of negotiating with an impacted aboriginal group, successful negotiation and agreement can be the most expedient and cost-effective resolution of a cultural resources conflict. Negotations should be undertaken prior to any public process and be given time and opportunity to Page 14 of 15
build trust and define goals. Shared operator/developer-tribal interest in a project and clearly-defined plans for protection, preservation, or mitigation of impacts to cultural resources within a project area can be a powerful force in overcoming even unrelated permitting challenges. Acknowledgments Special thanks to Kyle A. Martin, third-year law student at McGeorge School of Law in Sacramento, California. About Harrison, Temblador, Hungerford & Johnson LLP Harrison, Temblador, Hungerford & Johnson LLP specializes in mining, land use, and natural resources law. For mining clients, the firm provides strategic project permitting counsel, compliance counsel, and legal representation in both administrative and judicial settings. Firm attorneys have particular expertise in constitutional vested mining rights issues, Section 404 and 401 permitting, cultural resources issues, and environmental review and litigation. Harrison, Temblador, Hungerford & Johnson LLP is based in Sacramento, California, and counsels clients on projects in California and in states west of the Rockies, on both private and federal lands. Page 15 of 15