A copper mining head frame overlooking the Tonto National Forest in Arizona. (Photo Credit: Resolution Copper Mining)
WASHINGTON — The Senate on Friday approved a highly contentious, last-minute legislative provision that would force the federal government to allow for the creation of the continent’s largest copper mine in protected national forest in Arizona, part of which includes lands considered sacred by multiple Native American communities.
The requirement was slipped into a major annual bill to fund the operations of the Defense Department for the coming year. The National Defense Authorization Act (NDAA) is considered a “must pass” piece of legislation, and lawmakers have dealt with it on an emergency footing in recent weeks.
The land deal has nothing to do with national defense, of course, and many say it should not be included in the NDAA. Further, the provision is included in a package that would also create several new protected areas, some 250,000 acres, which has drawn the wrath of some conservatives. Still, in recent years such unrelated policy “riders” have often constituted the only way that the fractious Congress has been able to legislate. More concerning for many is the highly secretive way in which the deal was included in the bill.
Industry has pushed for access to these lands for the past decade, and both the U.S. House and Senate have repeatedly rejected the proposal in the past. This time around, the provision was made public only at 11:00 p.m. on Dec. 2, after a House of Representatives committee posted the full 1,700-page NDAA draft online. That was the night before the House was scheduled to vote on the bill.
“Proponents … falsely claim that the Tribe was consulted,” Terry Rambler, the chairman of the San Carlos Apache Tribe, told MintPress News in e-mailed analysis.
“This is the antithesis of democracy. We are extremely disappointed by the lack of transparency and lack of opportunity to comment on this provision.”
At issue are “lands held sacred by my Tribe and many other Native Americans,” Rambler says, including parts of the Tonto National Forest called Oak Flat and Apache Leap.
While the San Carlos Apache Tribe is based just a dozen miles from the intended mining site, Rambler says that “hundreds” of other tribes likewise oppose the land deal. The 90-year-old Association of American Indian Affairs has strongly opposed the project, warning in 2012 that the proposal would “destroy” the area’s “religious, cultural and integrity.”
Oak Flat and Apache leap were designated by the U.S. government during the early 20th century, fashioned out of ancestral lands from which Apache communities had been forcibly removed. The area has been repeatedly protected by the federal government in the intervening years, including through a decades-long ban on mining, over concerns of both cultural sensitivities and the region’s water supplies.
“Apache people have lived, prayed and died in the Oak Flat area since time immemorial,” Rambler told MintPress. “We are concerned for our children who may never see or practice their religion in their rightful place of worship.”
Senator John McCain speaks with miners during a tour of the Resolution Mining Copper Facility in Tonto National Forest, Arizona. (Photo Credit: Resolution Copper Mining)
At issue is the NDAA’s Section 3003, available on pages 1,103 through 1,130 of this draft. It is unclear who sponsored the provision, though in the past both of Arizona’s senators, John McCain (R) and Jeff Flake (R), have been key supporters of the deal.
Section 3003 now would direct the Department of Agriculture to transfer more than 2,400 acres of land in the Tonto National Forest, located some 65 miles southeast of Phoenix, to a specific company, Resolution Copper Mining. This venture is jointly owned by two of the largest mining companies in the world, Rio Tinto and BHP Billiton, both of which are headquartered in both Australia and the United Kingdom.
The deal is actually a land swap, and in return the federal government would be given several thousand acres of land that is currently privately held. In addition, Section 3003 would mandate an environmental study that would include an assessment of the potential cultural and archeological impact of Resolution’s activities.
Both Resolution and the federal government would also be directed to engage in consultation with local Native American communities “to seek to find mutually acceptable measures to … address the concerns of the affected Indian tribes; and … minimize the adverse effects on the affected Indian tribes resulting from the mining and related activities.”
Yet many are now warning that the wording of the new law would render these consultations irrelevant. The land is to be required to be given to Resolution regardless of the outcome of either the tribal consultations or the environmental assessment.
“The bill talks about consultation, but the decision will have already been made. So any consultation would be like rearranging the deck chairs on the Titanic – it won’t do much good,” Roger Featherstone, the director of the Arizona Mining Reform Coalition, a watchdog group that opposes the land swap, told MintPress.
“There is also a misunderstanding about the nature of the sacredness of this area. Rio Tinto says that only Apache Leap is sacred, and says it is easy to safeguard that section. But in fact the entire area is what’s sacred.”
As written, the law also includes no penalties for the company for any future environmental or cultural harms in the area.
“The broader pattern is that these huge foreign corporations are not above throwing their weight around politically and monetarily to get what they want,” Featherstone said.
“This bill has been brought up some 13 times, but that’s the new part here. The mining laws are already horribly weak on the federal side and even weaker in Arizona, but these companies aren’t even willing to follow the weak laws we already have. And for better or worse, some members of Congress are willing to oblige them.”
Wendsler Nosie Sr., chairman of the San Carlos Apache Tribe, explains why he and other elders consider Oak Flat sacred.
There is much at stake in this project. The companies describe the Resolution site as “one of the great copper ore discoveries of the last 100 years,” representing “one of the largest undeveloped copper resources in the world.”
The project could result in the recovery of a billion pounds of copper each year, supporters say, constituting a quarter of U.S. demand. (Critics counter that it is unclear whether much of this copper would be used domestically.) Rio Tinto and BHP Billiton also emphasize that the project would bring with it significant economic impact for local communities as well as state and federal coffers.
“Passage of the legislation means that Resolution Copper can move forward with the development of this world-class ore body which will create approximately 3,700 jobs, generate over $60 billion in economic impact and result in almost $20 billion in state and federal tax payments,” project director Andrew Taplin said in a statement.
In addition, a Rio Tinto spokesperson told MintPress that there is broad-based support for the project in the region, noting also a diversity of opinion among Native American communities for the proposal. The Resolution Copper website includes some three dozen letters of support for the project from local towns, counties and development coalitions, as well as state legislators and the U.S. Chamber of Commerce.
These economic prospects are indeed significant, and few are disputing related estimates of the potential overall impact. But at issue for others is whether, and how, economics trumps environmental and cultural concerns, and how democratic processes balance these issues.
Earlier this year, Rio Tinto surprised many by pulling out of a contentious project in Alaska, the Pebble mine, in part due to opposition from local indigenous and environmental groups. (The company donated its 19 percent stake in the mine to two charities in the Bristol Bay region.)
For now, the Resolution Copper website’s section on Native American engagement states only that the company is “committed to managing the lands we own or acquire in a responsible and respectful way, especially those lands found to have cultural, historical and religious significance to Native Americans.”
Yet Resolution Copper’s website includes no formal letters of support from Native American groups. It also doesn’t make mention of the significant opposition from other quarters, including from the Town of Superior, Arizona, a century-old mining community that would be most directly affected by the Resolution plan. Last year, the town’s council declined to support the land swap, stating that proposed legislation would “not include any benefit to our town” while posing uncertain environmental impacts.
The El Chino copper mine in nearby Silver City, New Mexico, gives an idea of what the proposed copper mine will do to the land in Tonto National Forest.
The scientific community has likewise long expressed concern over the land deal, noting’s central importance to Apache history. Earlier this month, the Society for American Archeology stated its opposition to Section 3003 in a letter to congressional leaders. “While these legislative exchanges meet the objectives of large corporations,” the letter warns, “they are hurtful to Native Americans, archaeologists, and large sectors of the public.”
Federal regulators, too, have expressed dismay over the land swap’s inclusion in the NDAA.
“[I]t removes a requirement to consult with the tribe and give them any ability to influence the outcome. And I think that is profoundly disappointing,” Interior Secretary Sally Jewell said at a press conference on Dec. 6, according to a recording provided by the Department of the Interior.
“I have met with the San Carlos Apache Tribe … I know they are willing to be at the table with Rio Tinto mining company. I have met with the CEO of Rio Tinto and brought this to his attention. And yet this bill gets tacked on.”
Jewell noted that the federal government now needs to “use all the tools in our toolbox to make sure that [local stakeholders’] voice is heard and that it influences the future course of that project, even though many of the protections that are there before are no longer there as a result of this piece of legislation.”
The NDAA will now go to President Obama for approval. In the past the president has opposed the Tonto National Forest land swap, and critics are urging him to veto Section 3003.