May 2007

Aboriginal consultation from the courts to the ground

Challenges in implementing effective engagement

By H. E. Robinson

First Nation communities play an important role in mineral development in Canada. Exploration efforts are often focused in areas that overlap with aboriginal titles or land claims. In the next 15 years, up to 30 per cent of land area in Canada could either be controlled or have recognized interests by aboriginal groups. As the demand for mining exploration increases, it highlights the need for cooperation between First Nations and the minerals industry.

Changes in the legal framework responsible for governing these relationships are most effectively propelled by movements at the grassroots level. Industry members are encouraged to integrate participation and communication with aboriginal groups in the project development process. It is these innovative and cooperative agreements between mining companies and First Nations that demonstrate the potential for efficient and nationally applicable legislation.

This resource-rich country plays a dominant role in exploration activity. The increasing demand for commodities offers excellent opportunities for Canada’s growing minerals exploration industry. To keep up with intense global competition, the success of mining exploration is dependent upon the discovery of new mineral deposits. Aboriginal consultation and land access are pertinent issues to mining companies seeking to explore land in Canada for these commodities. Industry members can benefit by engaging aboriginal communities in this process in order to successfully move forward with mining exploration and development in partnership with First Nations.

When to begin the process

The legislation in Canada that determines the legal steps required for mining companies to consult with aboriginal groups continues to be developed. At present, there is some confusion for companies wondering if they should consult with First Nations, and at what point in the exploration and project development process they might begin to dialogue with these groups. There have been a number of court cases that have given impetus towards changing policy to reflect the importance of aboriginal consultation. In November 2004, the Supreme Court of Canada ruled that the government has a duty to consult with First Nations who assert aboriginal rights or title in a territory, particularly where the government is proposing a course of action that might have a negative impact on those rights. Although it is the government’s responsibility to consult with aboriginal groups, companies are still encouraged to be involved.

“It is strongly recommended good business practice to consult with the First Nations at the earliest stage possible in order to address any of their concerns and to make them aware of the potential impact of an exploration project,” said Brian Abraham, a recognized lawyer in The International Who’s Who of Mining Lawyers, and a partner at Fraser Milner Casgrain. “While there may be no legal obligation of the proponent to consult, other than when the project reaches the environmental assessment stage, it is good practice to do so.”

In 2002, the government of Quebec reached a new agreement with the Quebec Cree Nation called ‘La Paix des Braves’ (The Treaty of the Brave). This landmark agreement is not only based on a sustainable development partnership with the Cree Nation, but also details the value of mining and hydroelectric revenues that will be returned to the First Nations communities over the next 50 years. Under the agreement, the Cree Mineral Exploration Board was established. This regulatory corporation has already improved relationships between the minerals industry and the Cree Nation, and increased the number of deals made between the two groups.

“I think these relationships between the mining industry and First Nations are in recognition of the changing landscape,” explained John Hurley, a partner at Fraser Milner Casgrain who has worked in energy and natural resources law and aboriginal law for almost 30 years. “People recognize that one cannot simply disregard First Nations in developing significant resource projects in lands subject to claims of aboriginal rights or title. If [a company] were to do so, there could be risks involved. Project proponents do not like risks; bankers do not like risks. So it makes a good deal of sense to be proactive and go out to establish a relationship with First Nations.”

These recent decisions by the Supreme Court and groundbreaking agreements between First Nations and provincial governments show how the law is a work in progress and moving towards effective partnerships. “People will be looking at these [agreements] to see what features are common, how they can be improved, and how they should be adapted to the special circumstances of any given case,” said Hurley. While this seems promising, what does this mean for projects currently conducting exploration in areas with First Nations interests?

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