Thursday, July 24, 2014

Weaker Mining Regs Face Tribal Opposition

03/05/2012

ojibwe couple Mary Annette Pember Judy and Myron "Burnsie" Burns are residents of the Bad River reservation. Burnsie says that he will stand with his rifle in front of a proposed iron mine if that's what it takes to protect the tribe's rice fields.

"Lake Superior Chippewa are radical environmentalists," declared Michael Wiggins, Jr. , tribal chairman of the Bad River Chippewa. Wiggins is opposed to the proposed 4-mile-long iron mine near the reservation in northern Wisconsin because, he says, it will scar mother Earth. 

Gov. Scott Walker and state Republicans who are promoting the mine as an answer to the region's economic slump would do well to heed Wiggins's words.

The current laws governing mining in the state of Wisconsin have their roots in Indian Country. Mining industry journals and think tanks have described Wisconsin-based mining opposition groups as "threats to the global mining industry" and assigned the state the lowest spot on its "Investment Attractiveness Index."

Back in 1976, Exxon Minerals proposed building a zinc-copper mine in northeastern Wisconsin near the Mole Lake Sokaogon Ojibwe Reservation.  Referred to as the Crandon Mine (it was near the town of Crandon), the proposal sparked nearly 30 years of unprecedented collaboration among organizations opposed to the mine. The diverse coalition of more than 50 groups included the Sokaogon Ojibwe, Menominee and Forest County Potawatomi tribes, fishing and hunting enthusiasts, conservationists, environmentalists, trade unionists, and rural citizens.  Their organizing efforts resulted in a mining moratorium law that requires mining applicants to provide proof that a similar Canadian or U.S. mine has not resulted in significant pollution. In 2003, the Sokaogon Ojibwe and Potawatomi tribes, pooling money from their casino revenues, purchased the land, and the application for a mining permit was formally withdrawn.

At the time Wisconsin State Representative Spencer Black called the Crandon Mine's resolution "not just a victory for the environment-it was a victory for the power of the people over the power of money."

Under the existing state laws, mining applicants must get authorization from the Department of Natural Resources (DNR) and follow a multi-stage process that involves case hearings as well as preparation and public review of an environmental impact statement; this process usually takes more than two years.

The current effort by state Republicans to change mining laws would fast track the mining review process in general and the Bad River mine in particular.

The proposed bill (AB 426) would set a 360 day deadline for DNR approval and remove DNRís discretion regarding completion of the process. It would eliminate the requirement for the DNR to hold a separate hearing regarding the environmental impact of a ferrous (iron) mining project. While current law does not distinguish between ferrous and non-ferrous mining, AB 426 provides an expedited process for proposed iron mines. AB 426 also eliminates citizen suits as a mechanism for enforcing compliance with permits and laws, has less stringent wetland regulations and reduced time period during which a mine operator is required to show financial responsibility for long term care of mining waste.

wild rice water Mary Annette Pember The Bad River sloughs, home to the tribe's wild rice.
The Bad River mine has been proposed by Florida-based mining company Gogebic Taconite (GTAC). As planned, the 4-mile mine would be located in the Bad River Watershed, where several streams and rivers flow en route to Lake Superior. The Bad River also flows through the area and feeds the sloughs that are home to the tribe's wild rice beds.

Tribal sovereignty and treaty rights played a large role in defeating the Crandon mine, and the Bad River Ojibwe may well use these powers in struggles with the GTAC mine. According to tribal attorney Glenn Stoddard, the Ojibwe hold a ìtrump cardî since tribes have the authority to create their own water and air quality standards; last year Bad River received approval from the EPA last year to define these rules.

In the Crandon mine controversy of the 1980s, the U.S. Supreme Court upheld this right after the State of Wisconsin tried to challenge the Mole Lake Ojibwe's water and air standards. The GTAC mine would be located in ceded tribal territory, roughly the northern third of the state where tribes retain rights to hunt, fish and gather, and would be subject to treaty law.  Stoddard notes that the treaties pre-date statehood.

As the Bureau of Indian Affairs explains, the sovereignty of Indian tribes is embedded in the U. S. Constitution: Article 1, Section 8, grants authority to Congress and the Executive and Judicial branches to engage in relations with the tribes. In 1942, the Supreme Court found that the U. S. has charged itself with moral obligations of the highest responsibility and trust toward Indian tribes. This trust responsibility is a legally enforceable fiduciary obligation on the part of the U. S. to protect tribal treaty rights.

lake superior Mary Annette Pember Waverly Beach, Lake Superior, on the Bad River Reservation

WTAQ News Talk Radio pointed out President Obama's 2009 executive order requiring states to consult with tribal governments on matters involving tribes.  Bureau of Indian Affairs spokesperson Nedra Darling told Wisconsin Public Radio, "We'd strongly encourage states to live up to this policy on tribal consultation."

The Bureau of Indian Affairs is already  looking into Wisconsin's possible violations of treaty rights for not having consulted with tribes before creating the mining legislation currently under state senate consideration. 

Time is running out for Wisconsin Republicans to pass new mining regulations. The GOP has only a one-person majority in the  state senate, and the legislative session ends on March 15.  And if the law passes, Wisconsin's statehouse representatives may be in for the fight of their lives.