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Below is a general public comment regarding the Minnesota Tribes and the Huber Frontier Project and Talon Mine. Please feel free to copy and paste language that helps further your comment, whether that be a piece or the entire document.

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Introduction

Environmental health and human health are inextricably connected. Projects that extract from the environment and contribute to environmental pollution hurt both environmental and human health. In particular, companies often choose to build projects that are detrimental for both environmental and human health in communities where there is low accountability. Because of this, companies take advantage of communities who sit on precious natural resources but lack the power or resources to keep the extraction project away.

Indigenous peoples have experienced continued injustice and abuse since colonists came to the Americas. The proposed Huber Frontier Project, an OSB factory, and the Talon Mine, a nickel, cobalt, and copper mine, continue that legacy of abuse. By exploiting the land that the native people of Minnesota rely on, these extractive industries threaten the very existence of Tribes in the area.

Indigenous People of Minnesota

Minnesota is home to seven Anishinaabe (Chippewa, Ojibwe) reservations and four Dakota (Sioux) communities. The proposed sites for the Huber Frontier Project and the Talon Mine are located on or near territory of the Red Lake, White Earth, Leech Lake, Mille Lacs, and Bois Forte tribes. The original people from the Great Lakes area of the U.S. and Canada are known as the Anishinaabe. Colonists imposed the names "Chippewa" and "Ojibwe" on the Anishinaabe people, whose plural is Anishinaabeg. These are the people who retained usufructuary rights to land, which they passed down to their descendants, many of which still inhabit the same land.

In Minnesota, Treaties govern the relationship between the Tribes and the U.S. Government. The Treaties granted the U.S. government title to land in exchange for giving the Tribes reservations, medical care, schooling, training, and monetary payment. While this exchange was an important part of the Treaties, the key part was that the Tribes retained usufructuary rights. These rights include hunting, fishing, and gathering rights on the land the Tribes ceded to the U.S. Government.

Despite promising the Tribes reservations, medical care, schooling, training, and money, the U.S. Government frequently broke these promises. Additionally, the U.S. used their unfair power advantage over the Tribes to resettle them and deprive them of their rights.

Four major treaties, agreed upon between 1837 and 1855, ceded the title of the Tribes' land to the U.S. government while the Tribes retained usufructuary rights.

The 1837 Treaty between the Chippewa and the U.S. government included in Article 5 "[t]he privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States." Additionally, the 1837 Treaty required the U.S. to provide payments and other goods to the Chippewa. Importantly, the 1837 Treaty explicitly named wild rice, which is integral to the Anishinaabeg origin story.

The 1842 Treaty between the Chippewa and the United States Government ceded more land to the U.S. from the Tribes. Like the 1837 Treaty, the Tribes retained usufructuary rights in the ceded territory and retained all rights in unceded land. Additionally, the Treaty required the U.S. government to pay the Tribes in exchange for the title to the ceded land.

The 1854 Treaty between the Chippewa and the U.S. government ceded more land to the U.S. government, and the Tribes retained usufructuary rights on the ceded land.

The 1855 Treaty between the Chippewa and the U.S. government ceded more land to the U.S. government in exchange for compensation, including goods, money, land to develop roads and reservations, and farmland.

Importantly, when the Tribes agreed to cede land to the U.S., this only transferred the title of the land to the U.S. Government. Therefore, the Tribes retained all other rights to the land, which they retain to this day.

In 1999, the Supreme Court of the United States decided the case Minnesota v. Mille Lacs Band of Chippewa Indians. The question the U.S. Supreme Court answered was whether the Mille Lacs Band of Chippewa Indians retained usufructuary rights or whether the rights were lost because of an Executive Order in 1850, the 1855 Treaty, or the admission of Minnesota to the United States in 1858.

The Executive Order in 1850, issued by President Zachary Taylor, ordered the removal of the Chippewa from the ceded territory and revoked their usufructuary rights. Although the Treaties state the Tribes retain their usufructuary rights until the President requires removal from the land, the Treaties subsequent to the 1850 Executive Order continued to leave usufructuary rights to the Tribes. Because of this, the U.S. Supreme Court decided that the 1850 Executive Order did not alter the Tribes' usufructuary rights.

When Minnesota was admitted to the Union, the Chippewa's usufructuary rights were not extinguished because Congress must clearly express an intent to abrogate Native American Treaty rights. Through the formal process of state admission, Congress did not state an intent to abrogate Treaty rights. Therefore, this did not extinguish the usufructuary rights guaranteed in the Treaties.

In Mille Lacs, the U.S. Supreme Court also applied the canons of treaty interpretation. Essentially, the canons are a set of guidelines that helped the U.S. Supreme Court interpret the treaties. When a treaty with Native Americans contains ambiguity, the treaty is "interpreted liberally in favor of the" Native Americans. Additionally, Congress must clearly abrogate the Native Americans usufructuary rights, and Congress is the only body who can do so. Finally, land cessions occurring after the Treaties are not inconsistent with continued hunting, fishing, and gathering on the lands. When applied to the actions that possibly eliminated the usufructuary rights, the canons of treaty interpretation tip the scale in favor of the Tribes. Also, at the time of the Treaty making, the U.S. Government had unfair bargaining power over the Tribes, so interpreting the Treaties in favor of the Tribes helps account for this unfairness.

Based on the canons of treaty interpretation and the Court's interpretation of the Executive Order in 1850, the Court decided the Mille Lacs Band of Chippewa Indians retained their usufructuary rights. That is, the 1850 Executive Order, the 1855 Treaty, and the admission of Minnesota to the US in 1858 did not interfere with the Tribe's usufructuary rights.

Extractive industries still target Native land despite the articulation of usufructuary rights in the Treaties and the recent confirmation by the U.S. Supreme Court that the Tribes still hold these rights. The pollution created by extractive projects, like the Huber Frontier Project and the Talon Mine, threaten these long-held usufructuary rights and the health of the Tribes in the region.

Free Prior Informed Consent

The principle of Free, Prior Informed Consent (FPIC) is an obligation in international law. As explained by the Food and Agriculture Organization (FAO) of the United Nations, Free, Prior Informed Consent respects and includes Indigenous people while also promoting their issues. The "free" piece means that the Indigenous people who are likely to be impacted by an action give their consent freely, that is without being coerced, intimidated, or manipulated. "Prior" means that whoever is doing the action, whether that be a government or a private entity, seek consent from the Indigenous tribe before any authorization or commencement of the activities. Indigenous people are properly "informed" when they are engaged in the process and are given adequate information to base consent on. Finally, "consent" encompasses a collective decision made by Indigenous communities, who hold rights to land, knowledge, resources, their culture, and more.

In international law, FPIC comes from the right to self-determination. FPIC is generally applied through specific treaties and declarations that countries, as Parties, sign onto. Through many instruments and implementations, the overall consensus is that nations must have good faith consultations with Indigenous peoples before gaining access to their resources or acting in a way that could harm Indigenous peoples.

In 2007, the United Nations General Assembly adopted the "United Nations Declaration on the Rights of Indigenous Peoples." Several Articles in the Declaration specifically reference FPIC. Article 10 requires that Indigenous peoples cannot be relocated without FPIC and that they must receive "just and fair compensation and, where possible, with the option of return." Article 11 requires countries to provide redress for cultural, intellectual, religious, and spiritual property taken without Indigenous peoples' FPIC. Article 19 says "States shall consult and cooperate in good faith with the indigenous peoples through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them." Similar to Article 11, Article 28 requires redress when Indigenous peoples' land is taken from them without FPIC. Article 29 ensures that countries cannot store or dispose of hazardous materials on Indigenous land or territories without their FPIC. Finally, Article 32 says that "States shall consult and cooperate in good faith with indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploration of mineral, water or other resources." Although the Declaration is non-binding, therefore considered "soft law," it sets out ideals for nations to implement into national law.

Nations have translated FPIC from an international principle, which is generally non-binding and non-enforceable, into binding and enforceable national laws. The Declaration encourages nations to "provide effective mechanisms for prevention" and redress of actions that is meant to harm Indigenous people. The harm could be to their culture, land, resources, or rights. Disappointingly, the United States Government does not have any national laws on FPIC.

The State of Minnesota has translated FPIC into a state requirement. On April 4, 2019, Minnesota Governor Tim Walz issued Executive Order (EO) 19-24, titled "Affirming the Government to Government Relationship between the State of Minnesota and Minnesota Tribal Nations: Providing for Consultation, Coordination, and Cooperation." This EO recognizes the important relationship between the State of Minnesota and the Minnesota Tribal Nations. The EO requires the State of Minnesota to engage in "[m]eaningful and timely consultation" with the Minnesota Tribal Nations to "facilitate better understanding and informed decisions..." Therefore, all state agencies in Minnesota must consult with Minnesota Tribal Nations prior to allowing projects that could potentially impact the Minnesota Tribal Nations.

Minnesota's EO is a first step towards honoring the international law principle of FPIC. EOs should only be a temporary solution because the next president or governor could repeal them unilaterally. Because of this both, the U.S. Government and the Minnesota Legislature need to honor FPIC through legislation that codifies FPIC into law.

History of noncompliance

As an example of "good behavior," Rio Tinto points to the Eagle Mine, which operates in Michigan. Despite claims that the Eagle Mine is "keeping our employees safe, protecting the environment, and being a responsible community member," the facility has repeated violations for polluting the surrounding area. According to the Eagle Mine website, the Mine has produced 317 million pounds of nickel and 313 million pounds of copper since 2014, and the Mine will continue extracting until 2026. In total, the Mine and its facilities cover approximately 130 acres. According to the U.S. Environmental Protection Agency, as of May 2022, the Eagle Mine had released 8,336,128 pounds of chemicals onsite, released 216 pounds of chemicals offsite, and transferred 245 pounds of chemicals offsite. "Releases" can include "spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment." Release into the air is often through stacks, ducts, or pipes. Release into the water can be into surface water, such as streams, rivers, or lakes, or into groundwater, such as through underground injection wells. On-site release can also include recycling, energy recovery, and treatment.

This example of good behavior by Rio Tinto is actually an environmental detriment. The Eagle Mine continues to pollute the surrounding area. This includes the soil, air, and water. Pollution is easy to create, but creates lasting environmental damage. The harm from the Eagle Mine will likely last for generations to come.

Non-compliance is likely and would violate treaty rights

Acid Mine Drainage (AMD) is one consequence of sulfide mining. Copper-nickel mining releases mercury air emissions, sulfate discharges, copper, nickel, manganese, iron, aluminum, arsenic, solvents, and processing wastes. A 2012 review of state and federal documents of 14 copper sulfide mines showed that all of the mines had spills or accidental releases.

Based on prior actions from similar facilities, non-compliance is likely. If a spill from the Talon Mine occurs, the pollution will damage the precious environment in the surrounding area. Notably, the mine is likely to pollute water resources. Additionally, the mine would directly destroy wetlands by replacing wetlands with the mining facility.

If any non-compliance occurs, this is likely to result in various chemicals and heavy metals entering this pristine environment. In these areas, the environment and its resources are not only intrinsically valuable---they are also protected by the treaties guaranteeing Tribes usufructuary rights. Pollution would cause harm to the Tribes' legal rights---the water, air, land, soil, and everything that inhabits those natural spaces.

The jobs argument

While the extractive industry boasts job creation, the picture is more complicated than what meets the eye initially. In particular, industries come to communities to extract resources and bring the promise of job creation. These jobs are sometimes held by local people, but often companies bring in their own people or specialists from out of town. Additionally, extractive industries are, by their nature, not sustainable. Therefore, they come, take, and leave. This leaves communities in worse shape than before because they are without jobs and stuck with the leftovers from the extractive industry.

Also, renewable energy sources can create more jobs than the extractive industry. Renewable energy sources are sustainable, and the jobs they create stay long-term. Renewable energy is the future, and the State of Minnesota should choose to invest in renewables instead of extractive industries.

Conclusion

There is too much to lose for extraction projects to be worth it. They threaten the land, water, air, and wildlife, along with usufructuary rights retained by the tribes. Lack of consultation with tribes also violates principles of international law and the EO from Governor Walz. Despite promises of jobs for local people, extractive industries are there to make money and leave. They do not invest long-term into the communities they take from.

For these reasons, we oppose both the Huber Frontier Project and the Talon Mine. We believe the way forward is through sustainable means, not through destroying native land to profit corporations.

Sources:

Brian Bienkowski, Pollution, Poverty and People of Color: A Michigan Tribe Battles a Global Corporation, Environmental Health News (June 12, 2012) ("But as the nation grew larger, the environmental justice issues did, too. Native American reservations have been targeted as places to dump industrial waste, and to mine both uranium and coal, leading to polluted rivers, lakes and tribal lands across the country.") https://www.scientificamerican.com/article/pollution-michigan-tribe-battle-global-corp/#:~:text=Native%20American%20reservations%20have%20been,or%20mining%20as%20revenue%20generators

Minnesota Indian Tribes, Minnesota.gov https://mn.gov/portal/government/tribal/mn-indian-tribes/ (last visited July 11, 2022).

What is this "Frontier Project"?, Honor the Earth https://www.honorearth.net/huber-project (last visited July 11, 2022).

What does take mean under the Endangered Species Act and what is incidental take? NOAA Fisheries https://www.fisheries.noaa.gov/node/8051#:~:text=and%20Citizen%20Science-,What%20does%20take%20mean%20under%20the%20Endangered%20Species%20Act%20and,%2C%20but%20not%20unexpected%2C%20taking.

Copper Sulfide Mining, Earthworks https://earthworks.org/issues/copper-sulfide-mining/

Sulfide Mining Fact Sheet, Mepartnership https://www.mepartnership.org/wp-content/uploads/2018/02/MEP-Sulfide-Mining-Fact-Sheet-2018.pdf

Common TRI Terms, U.S. Environmental Protection Agency https://www.epa.gov/toxics-release-inventory-tri-program/common-tri-terms

TRI Facility Report for Eagle Mine LLC, U.S. Environmental Protection Agency https://enviro.epa.gov/triexplorer/release_fac_profile?TRI=4981WGLMNL4547C&TRILIB=TRIQ1&V_NA_INDICATOR=,&FLD=&FLD=RELLBY&FLD=TSFDSP&OFFDISPD=&OTHDISPD=&ONDISPD=&OTHOFFD=&YEAR=2018

Our Operations, Eagle Mine https://www.eaglemine.com/operations

Nickel & Copper Mining in Michigan's Upper Peninsula, Eagle Mine https://www.eaglemine.com/

Anishinaabe Cumulative Impact Assessment on the Proposed Enbridge Line 3 Expansion and Abandonment Plan, Honor the Earth https://www.mnchippewatribe.org/pdf/Intro_DRAFT.pdf

Broken Promises, Why Treaties Matter http://treatiesmatter.org/exhibit/welcome/broken-promises/

E.O. 19---24, Affirming the Government to Government Relationship between the State of Minnesota and Minnesota Tribal Nations: Providing for Consultation, Coordination, and Cooperation, State of Minnesota Executive Department Governor Tim Walz https://mn.gov/governor/assets/2019_04_04_EO_19-24_tcm1055-378654.pdf

United Nations Declaration on the Rights of Indigenous Peoples https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

Tara Ward, The Right to Free, Prior, and Informed Consent: Indigenous Peoples' Participation Rights within International Law, Northwestern Journal of International Human Rights (Winter 2011) https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1125&context=njihr

Free, Prior and Informed Consent, United Nations Food and Agriculture Organization https://www.fao.org/indigenous-peoples/our-pillars/fpic/en/

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).

Treaty with the Chippewa, 1855 https://www.leechlakenews.com/wp-content/uploads/2018/02/1855-Treaty.pdf

Treaty with the Chippewa, 1854 https://files.dnr.state.mn.us/aboutdnr/laws_treaties/1854/treaty1854.pdf

Treaty with the Chippewa, 1842 https://glifwc.org/TreatyRights/TreatyChippewa10041842Web.pdf

Treaty with the Chippewa, 1837 https://glifwc.org/TreatyRights/TreatyChippewa07291837Web.pdf

Silvo Marcacci, Renewable Energy Job Boom Creates Economic Opportunity As Coal Industry Slumps, Forbes (April 22, 2019) https://www.forbes.com/sites/energyinnovation/2019/04/22/renewable-energy-job-boom-creating-economic-opportunity-as-coal-industry-slumps/?sh=782b8fbe3665

Joel Jaeger, Climate-friendly Investments Can Create More Jobs Per Dollar than Polluting Alternatives, World Resources Institute (Oct. 18, 2021) https://www.wri.org/insights/green-investments-create-more-jobs-polluting-alternatives