Aboriginal Consultation Before Action is Critical

Three tips: consult, consult, consult

by TIM GARDNER

Canadian Mining & Energy

Published September 2012 (posted here with permission from Canadian Mining & Energy)

Bob Joseph is the founder and president of Indigenous Corporate Training Inc., which helps individuals and organizations work more effectively with Aboriginal Peoples, both in Canada and around the world.

The founder of an aboriginal awareness training firm said some mining companies still don't recognize the importance of consultation when dealing with Canadian First Nations.

Bob Joseph is a member of Vancouver Island's Gwawaenuk Nation and founder and president of Indigenous Corporate Training Inc., based in Port Coquitlam, British Columbia. Joseph said too many mining firms still don't understand that governments have a duty to consult with First Nations before a proposed mine project that may affect a First Nation and/or its aboriginal rights can be approved.

Joseph said many mining companies operating in Canada perform very well when dealing with First Nations, while others struggle. The number 1 problem companies have is their failure to comprehend the importance of consultation.

"I think that's the one that gets people into the most trouble," Joseph said.

Economic benefits are not enough

Several companies who seek necessary federal or provincial government approvals or permits in order to build, expand or reopen a mine on land used or claimed by a First Nation still approach senior governments and stress how a project can improve a local economy, create jobs and/or generate government revenues.

"They figure that will be good enough for governments to support (a project)," Joseph said. "But they (governments) also have another objective. They have a duty to consult."

That duty has been upheld by the Supreme Court of Canada, including in its 2004 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) decision, involving a mining company and a British Columbia First Nation.

Unfortunately, some companies spend relatively little time talking to First Nations about their proposed projects, even though a project may be located on land legally recognized as being part of a particular First Nation's traditional territory—or on land that may be part of a particular First Nation's traditional territory in the case of an unresolved land claim. As a result, when governments later raise issues that may threaten development of a mine after consulting with a potentially impacted First Nation, companies are sometimes caught flat-footed.

Canadian governments are very wary of infringing on existing aboriginal and treaty rights as recognized and affirmed in Section 35 (1) of the 1982 Canadian Constitution Act. If a government does issue a permit for a mine to go ahead and a court finds there's been a rights infringement, a government can face a serious financial penalty, Joseph said.

Consult, consult, consult

It's therefore in a mining company's best interests to do a fair amount of consulting on its own with First Nations people, or try to be involved in a government's consultation, if a mine is being proposed for construction on land used or claimed by a Canadian First Nation.

If a rights infringement is possibly detected as a result of a poorly prepared permit, aboriginal people can tie a project up in court for up to three to five years at relatively little cost to them, Joseph said. Mining companies on tight construction schedules and with cash-flow issues may not be able to wait to develop a project for that long.

"You know what's in it for them? Economic certainty—the ability to get things done," Joseph said when asked why it's so important for mining companies to make sure that a proper consultation process for a project is followed.

The best way

Of course, mining companies can also engage in impact benefit agreements (IBAs) with First Nations, Joseph said. That's when a mining company engages with a First Nation or First Nations that will be impacted by a proposed mining project and negotiates a binding agreement between the company and the community or communities.

The main goals of IBAs are to address negative effects that mining activities may have on First Nations and their traditional territory and to ensure First Nations gain tangible advantages from the commercial extraction of mineral resources from their territory.

IBAs vary widely across Canada, at least partly because mineral tenure and mining regulation differ across the country. The extent of aboriginal rights, treaty rights and land claim agreement rights can also affect negotiations because it is still an evolving area of law.

However, Joseph said, there are companies who know how to do it right. They engage First Nations that may be impacted by a proposed company mine even before they look into the mine-permitting process. They then state they know they're on a First Nation's territory but ask the proper authorities what it would take to make a mine happen.

Once an agreement is reached that is acceptable to both sides, then the company goes looking for government permits.

"They're going to the government with First Nations already on side," Joseph said.

Reprinted with kind permission from Mining & Exploration online magazine.

• Indigenous Consultation vs Indigenous Engagement

Featured photo: Unsplash