Sixty miles east of the Menominee Indian Reservation lies the mouth of the Menominee River, which takes the name of the Menominee Indian Tribe of Wisconsin. The Menominee tell the story of the Ancestral Bear, who emerged from the mouth of the river and was transformed by the Creator into a human being – the first Menominee. Today, archaeological indicators such as burial mounds, raised garden beds, and dance rings tell the story of a rich culture thriving along the length of the river’s watershed.
The Menominee relationship to the river extends to the cultural resources which depend on its health and its flows, namely Lake Sturgeon and wild rice. The Menominee co-administer a sturgeon restoration plan with the State of Wisconsin, and have recently reseeded historic wild rice beds alongside citizens of Marinette County.
In 2001, much of this area fell within the project footprint of the Back Forty Mine, a proposed open-pit metallic sulfide mine targeting gold and zinc deposits. The Tribe does not consent to this mine or any project that puts the river, the land, their culture, and their people at risk.
The Tribe recognized the severity of these risks in a resolution passed by the Menominee Tribal Legislature in 2015 – an explicit statement of opposition to the Back Forty Mine. The resolution cited threats to cultural historical sites as well as threats to water, environment, and wildlife. This position is shared throughout the non-Indigenous local community who almost uniformly oppose the development of the mine on many of the same grounds.
New Project Developer, Same Threats to Culture, Resources, and Lifeways
In December 2021, Gold Resource Corp., a U.S.-based mining company, became the lead developer of the Back Forty Mine when it purchased Aquila Resources. Gold Resource’s CEO recently informed investors that the company intends to release a new definitive feasibility study in the latter half of 2022, and expect permitting applications to follow shortly thereafter.
Menominee Tribal Chairman Ronald Corn Sr. responded to the merger:
The merger does not change our opposition to the mine. Many of these sites are still areas of impact from the proposed Back Forty Mine development, and the Menominee are committed to protecting and preserving these sites. The Menominee were not afforded the opportunity to give our free, prior, and informed consent as to the siting of the mine nor its impacts on the land, plants, and wildlife which form the body of our cultural traditions and modern cultural practices. As such it is our firm position that the Back Forty Mine still lacks the social license to operate, regardless of who the developer of the mine happens to be.
A look at the project lifecycle to date indicates how the project might move forward under new ownership. In 2013, Aquila had acquired sole ownership of the Back Forty Mine and immediately faced setbacks in the permitting process. Permitting applications were challenged by the Menominee, local citizens, environmental organizations, and both the state and federal government. In 2014, Aquila published a Preliminary Economic Analysis (PEA) which contemplated an underground mining phase. However, Aquila’s 2018 definitive feasibility study – which considered the project's economic, technical, legal, and scheduling factors to ascertain the likelihood of a successful return on investment – neglected to include an underground mining phase opting for a pit-only mine design. This contributed to ongoing multi-front litigation that impeded Aquila’s efforts to operationalize existing permits.
Rather than continue to defend issued permits, Aquila chose to draft a revised feasibility study including an underground mining phase before reinitiating permitting for the mine. In terms of environmental, legal, operational, and social risk, Aquila’s failure to move the project from the permitting phase into the construction phase underscores the risks that face a mine developer which fails to obtain the social license to operate. Notably, in 2020 Ernst and Young (now EY), projected the social license to operate as the top business risk facing the mining and metals industry for 2021.
As new project owners, Gold Resources and their shareholders must take into account that any mine that proceeds without the consent of the Menominee will also proceed without the social license to operate. When a project lacks the free, prior, and informed consent of the impacted Indigenous Peoples, it lacks social license to operate. Without social license to operate, businesses could experience operational and construction delays, litigation, and social conflict, which have financial and reputational risks for the companies.
The history of the Back Forty Mine and the persistent failure to recognize the Tribe’s long-standing opposition indicates a lack of human rights due diligence throughout project development. Without better standards, Gold Resources face the same legal and operational risks as Aquila, and potentially the same outcome. These business risks stem directly from the failure to obtain the free, prior, and informed consent of the Menominee and the social license to operate from impacted stakeholders. Without both, these risks will remain.