Wisconsin Resources Protection Council

PUBLIC TESTIMONY OF AL GEDICKS BEFORE THE MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY (MDEQ) ON PERMITS FOR AQUILA RESOURCES BACK FORTY PROJECT ON THURSDAY, OCTOBER 6, 2016 AT THE STEPHENSON, MICHIGAN HIGH SCHOOL GYMNASIUM

Aquila Resources does not have a social license to operate

My name is Al Gedicks and I am the executive secretary of the Wisconsin Resources Protection Council. I am also an emeritus professor of environmental sociology at the University of Wisconsin-La Crosse.

Tonight’s public hearing is about the permits that Aquila is seeking for an open pit metallic sulfide mine next to the Menominee River. This is a regulatory license.

However, the mining industry has come to recognize that there is also a social license  to operate  (SLO) that is intangible and unwritten, and cannot be granted by the DEQ or any other state agency or legal authority.

A social license is essentially a set of demands and expectations, held by local stakeholders, like the citizens and groups represented in this hearing, for how a business should operate. According to the Fraser Institute, a mining industry think tank in British Columbia, the concept “is based on the idea that mining companies need not only government permission (or permits) but also ‘social permission’ to conduct their business. Increasingly, having an SLO is an essential part of operating within democratic jurisdictions, as without sufficient popular support it is unlikely that agencies from elected governments will willingly grant operational permits or licences” (http:www.miningfacts.org/Communities/What-is-the-social-licence-to-operate/).

Not having a social license was once seen as a threat to the economic value of a project because it delayed cash flows. Now it is seen as a potential project destroyer, according to industry risk analysts.

The significance of a social license arises from the power of stakeholders, like the people in this audience, to impose costs on Aquila or to influence the financial backers of this project. This influence may occur through protests such as the recent Water Walks and “Remembering Our Ancestors Gathering” on the Menominee River, through media campaigns or by legal challenges, including Lake Township’s “Mineral Extraction Ordinance” and “Land Usage Approval” conditions. The lack of a social license may also affect the reputation of Aquila Resources as they try to acquire new mineral properties in northern Wisconsin.

The issues at stake in this proposed mine, the contamination of the Menominee River and the destruction of multiple burial sites and mounds sacred to the Menominee Indian Tribe of Wisconsin are the same issues that have brought together the largest gathering of Native American tribes in a century to protest the Dakota Access Pipeline next to the Standing Rock Sioux reservation in North Dakota.

As a result of this protest the federal government has invited tribes to formal, government to government consultations this fall to discuss new legislation to ensure meaningful tribal input into resource extraction decisions and the protection of tribal lands, resources and treaty rights. This is not a good time to invest in destructive mining projects where there is significant tribal and community opposition and pending legislation that may declare sacred lands off limits to mining.

The evidence to show that Aquila does not have a social license to operate is overwhelming. Let me give you some of the many examples of Aquila’s lack of legitimacy for this proposed mine in this community.

The Evidence:

As a result of a Freedom of Information Act request to the DEQ, we know that over 2,000 members of the public wrote to DEQ to express serious concerns about the proposed sulfide mine project. Amazingly, 98% of all signatures and comments opposed the Back Forty Project.

No Consultation and No Consent from the Menominee Indian Tribe of Wisconsin

The Menominee Indian Tribe of Wisconsin has passed a resolution opposing mining activity that threatens the Tribe’s place of origin at the mouth of the Menominee River. The Archaeological Investigation Report for the proposed mine lists at least 22 archaeological sites known to exist on the property. A complete survey of the area has not been done.

Neither Aquila nor DEQ has obtained the “free, prior and informed consent” of the Menominee Tribe for a mine project that would impact their territory and resources, as required by the UN Declaration on the Rights of Indigenous Peoples and the National Historic Preservation Act (NHPA).

Article 11 of the UN Declaration on the Rights of Indigenous Peoples, affirms that “Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites.

Both NHPA and the Section 106 regulations require that federal agencies in carrying out their Section 106 responsibilities, consult with any Indian tribe that attaches traditional religious and cultural significance to historic properties that may be affected by an undertaking (http://www.achp.gov/docs/un-declaration.pdf )

And the State of Michigan has recently enacted Act 247 which calls for the Department of Natural Resources to “assist and promote the making of applications for inclusion in the National Register of Historic Places” and “to carry out activities to protect, preserve and promote the awareness of Native American cultural heritage in this state.” Why is the Michigan DNR and DEQ failing to follow this law?

The United Tribes of Michigan passed a resolution supporting the efforts of the Menominee Tribe to protect the Menominee River Watershed and to demand the denial of mine permits for the Back Forty mine.

The Chippewa Ottawa Resource Authority has noted that mining pollution of the Menominee River could potentially last for hundreds or thousands of years and therefore states its unqualified opposition to any new or proposed open put sulfide mine in the Menominee River watershed.

On September 20, 2016 the Marinette County Board of Supervisors passed a resolution strongly opposing Aquila’s Back Forty metallic sulfide mine and urged the Michigan Department of Environmental Quality to deny a mining permit for the Back Forty project.

The resolution passed by a 28-0 vote.  Aquila Resources was invited, but declined to send a representative to the meeting to defend its mining proposal.

The resolution cited concerns over long term leaching of acid producing wastes into the groundwater and the river, the risks to human health and the environment in Wisconsin as well as Michigan, the threat to the sturgeon population in the Menominee River and the irreversible loss of significant cultural resources of the Menominee Indian Tribe of Wisconsin, including Native American gravesites. A company that cannot or will not defend its project before elected officials in a community that will be directly affected by mining pollution has no social license to operate.

The River Alliance of Wisconsin has resolved to use the voice and influence of its organization to speak out against the development of the proposed Back Forty mine. The dubious benefits of the mine can’t outweigh the potential environmental degradation of the mine, especially if there is a failure of its tailings ponds or a breach of the thin wall between the pit and the river.

Throughout this permit process and especially during tonight’s public hearing, the DEQ has demonstrated a contempt for the voice of citizens and the sovereign Menominee Indian Nation. The public notice for this event clearly stated that “presentations will be limited to five minutes.” However, when people arrived at the hearing, Steve Casey, the district coordinator for the DEQ announced that speakers would be limited to three minutes each.

Halfway through the hearing he cut that to two minutes each. When Menominee Tribal Chairwoman Joan Delabreau finally got the chance to present the concerns of her Nation, she was cut off and the offers of other speakers to give up their time so she could finish her statement were denied.  This was an outrageous demonstration of disrespect for a government official. Such behavior would never be tolerated if the Governor of Michigan or Wisconsin requested time to finish their statement. Steve Casey should be ashamed of the blatant racism he displayed toward  Tribal Chairwoman Joan Delabreau.

Unfortunately, this is just another indication of how the permit process in the State of Michigan has sacrificed democratic principles to promote the interests of a foreign mining company. Marla Tuinstra of Lake Township summarized the feelings of many in the community when she said: “As a long-time Lake Township landowner and taxpayer, I am concerned that a foreign company can come in and dictate, through what appears to be a flawed permit process, what will happen to the area.”

Deny the permits. Your grandchildren will thank you.