Strategies for Tribal Involvement in Mine Permitting and Compliance

1.  Participate in the Scoping Process

The scoping process is the first opportunity to participate in the National Environmental Protection Act (NEPA) process. Tribes can identify significant issues that should be analyzed in the Environmental Assessment (EA) or Environmental Impact Assessment (EIS), identify sources of information (especially those in the possession of indigenous interests), identify data gaps and informational needs, and also identify alternatives to a proposed action. This is good time to assert the need for a Health Impact Assessment (HIA) in addition to the EIS.

2.  Protect subsistence resources by using the Federal Trust Responsibility under ANILCA

In section 810 of ANILCA, federal agencies that issue permits, leases, and take other actions with regard to federal land must consider the impact of these actions on subsistence and consider available alternatives to reduce the impact on subsistence. When an EA or EIS is drafted, tribes and local people should ensure that subsistence impacts have been thoroughly considered by the agency. ANILCA is coordinated by the Office of Project Management and Permitting in the Alaska Department of Natural Resources.

3.  Assert tribal right to government-to-government consultations

This is a way for tribal governments to ensure that they are consulted about the environmental impact of a proposed project. An official representative for the tribal government should be designated to establish a tribal consultation plan with the appropriate agency. Such consultation should start via written documents requesting such consultation.

4.  Assert tribal right to be a cooperating agency

Cooperating agencies work in conjunction with the lead agency to provide perspectives, opinions, and expertise in the development of an EIS and HIA. The advantage of becoming a cooperating agency is that tribes can have direct and early involvement in key decisions. These include the scope of the EIS or HIA, the nature of the alternatives considered, and the degree of public involvement. As a cooperating agency, tribes have the opportunity to both shape the process and educate the agency on the impact of a proposed project.

5.  Request training and educational opportunities

These are ways to learn more about the environmental implications of a project. For example, tribes can request technical training on NEPA through the Bureau of Indian Affairs. Tribes may request site visits to mines or proposed mine sites. It may be appropriate for tribal interests to request assistance with securing funding for tribal consultants to review the mine proposal and its related analysis documents.

6.  Ensure that Traditional Ecological Knowledge is incorporated into NEPA documents when it is deemed desirable by a tribe

Traditional Ecological Knowledge can be used to evaluate the environmental impacts of a proposal or to develop alternatives. Some examples of Traditional Ecological Knowledge that may be included in an EA or EIS are observations of the environment, climate, habitat, and migratory patterns of fish and wildlife. Subsistence harvest practices, subsistence resources and subsistence areas also may be important to include in NEPA documents.  Keep in mind that sensitive information may not be kept private in the NEPA process.

Where Traditional information may be sensitive or where divulging traditional uses or locations is a problem, there are mechanisms to ensure that the information remains confidential. This information can still be used to benefit the analysis and thereby potentially protect tribal interests. The nature of and protection of sensitive or confidential information should be discussed and a plan established to protect it before it is divulged.

7.  Ensure that consultation requirements are being met under state and federal cultural resource protection statutes.

Tribes have a right to be involved in the federal decision making process about actions which may impact cultural properties and cultural resources. The National Historic Preservation Act of 1966 (NHPA), the Archaeological Resources Protection Act (ARPA), and the Native American Graves Protection and Repatriation Act (NAGPRA) are among the statutes that protect historically and culturally significant places from being destroyed by development. According to the Alaska State Preservation Act before a “permit for the investigation, excavation, gathering, or removal from the natural state, of any historic, prehistoric, or archeological resources” is issued for a site with “significance to a cultural group, the consent of that cultural group must be obtained before a permit may be issued under this section.”

8.  Participate in public hearings and meetings

Hearings provide an opportunity to present information to improve the NEPA process and decision. Tribal members can educate agencies on the tribal perspective and also provide site specific information that has been passed down for generations. To provide an effective public hearing, the agency should provide reasonable accommodation so that many members of the tribe can participate. Printed materials may need to be translated into Native languages and interpreters may be needed. Also, hearings should be scheduled at times that do not conflict with important subsistence and cultural activities.

9.  Take agencies/project proponents on a site visit

This provides another way for tribes to educate agencies and project proponents about the cultural and natural significance of tribal lands as well as impacts that the project may have on the tribe’s way of life.

10.  Develop a tribal community environmental plan

This is a community resource plan that documents the traditional territory of a tribe and important cultural and natural resources. Specifically, a tribe may develop a tribal comprehensive plan, a watershed plan, or a subsistence use plan. The plan could document sensitive habitat in the area, traditional uses of the area, and future tribal goals for the area. A tribal community environmental plan can be helpful because it streamlines the tribe’s role in contributing to NEPA, establishes the tribe as having expertise about the area, and demonstrates legal standing if the tribe appeals NEPA actions.

11.  Take a proactive role in project monitoring and oversight

NEPA does not dictate specific outcomes or ways to manage environmental damage; it only provides the framework to consider and document potential effects to the environment and people. By monitoring the projects, tribes have the ability to ensure that adverse impacts are brought to the public attention and considered by the action agencies. Mitigation measures detailed in the EIS may then be used to avoid or decrease these impacts.

12.  Use provisions of the Executive Memorandum 12898, Environmental Justice

In 1994, President Clinton issued Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” to focus the attention of federal agencies on human health and environmental conditions in minority and low income communities. Under this order, all federal agencies are required to adopt strategies that will address environmental justice concerns within NEPA and other agency procedures. The provisions of this Memorandum can be used to make the NEPA process more culturally appropriate and accessible to Alaska Native communities.

(Content derived from Community Involvement in Mine Permitting and Compliance by Alaska Community Action on Toxics)

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