Mining Canada’s North Part III: First Nations Relations

Trent Ernst, Editor

Between now and 2020, Mining in Canada’s North will nearly double, with output expected to grow 91 percent. Mining exploration and development will drive many Northern economies—from Labrador to the Yukon—over the course of the next decade. The possibilities for growth and development is tremendous.

But success brings with it its own set of problems. Some are new: where do we find the people to do the work? Some are old: what happens to the people when the mines close down? The communities that have sprung up around the mining industries?

While it is easy to forget in the urban centres, there are still First Nations people living traditional lives in the north. While there is a thin western veneer that has been painted over many First Nations communities, the land is still important to many, and mining does have a fairly heavy impact on the land and the flora and fauna it supports.

Historically, development in traditional territories meant negative social and environmental impacts for First Nations Communities, while the company raked in the cash.

According to a report published by the Centre for the North, “aboriginal rights are a reality that governments and industry must acknowledge and respect. However, several regulatory issues and overlaps are affected by the lack of clear and settled land claims agreements. The settlement of outstanding land claims and resource agreements would help clarify roles and responsibilities for all proponents. This would also create greater stability and certainty around resource development going forward, while allowing for full and equal participation in development projects in the future.”

At the heart of mining companies’ engagement strategies with First Nations are the impact and benefit agreements (IBAs). An Impact and Benefit Agreement is a contract made between an Aboriginal community and a company that provides Aboriginal consent or support for a project to proceed.

According to the IBA Community Toolkit, a free, 200 page resource for First Nation, Inuit and Métis communities in Canada considering impact and benefit agreements, such as those with mining companies, “contractual agreements between mining companies and Aboriginal communities now play a critical role in shaping the terms on which minerals will be extracted from Aboriginal lands in Canada.”

Consultation between the company, the government, and the First Nations communities are important in the development of mines in the north, and a number of projects in Northern BC have failed due to First Nation opposition, although Aboriginal peoples do not ultimately have approval authority or veto rights.

That said, there is no obligation on the part of the company to negotiate. It is the government, not the company, that is ultimately responsible for approving a mine, and who need to take into account the rights of the First Nations in the development of the project.

Prior to the 1970s, Aboriginal Peoples were not involved in the decision-making around mining development near or on their ancestral lands. However, the Supreme Court of Canada has made a number of since then, that have formed the legal duty of governments to consult Aboriginal Peoples when government decisions may infringe on Aboriginal and treaty rights.

industry, although some procedural elements can.

For instance, during the environmental assessments of a mining project, the provincial or federal government can request that project developers consult with affected Aboriginal communities as part of the consultation process. The Crown retains ultimate responsibility to determine whether adequate consultation has taken place. The duty is to consult in a meaningful way and accommodate Aboriginal communities where possible.

However, according to Ray Proulx, Community Liason for Teck for Northeast BC, it is in the company’s best interest to enter into discussions with First Nations as early as possible. “First off, early, involved engagement with First Nations people at the very basic stages of any project is very important,” says Proulx. “We are bringing the project to their doorstep. As a company we’ve set goals and objectives at the highest level of the company in recognition and respect of indigenous rights. This is an extension of that, in respect to the environment, in respect to rights and traditional values.”

Proulx says that, for Teck, engagement is lead by the nations that the company works with, not by the company itself. This will not only lead to both sides benefitting from the agreement, but will lead to strong relationships between the company and the community.

“Our key to success is demonstrated respect,” says Proulx. “When you can do that, and develop meaningful working relations, sitting down and having a dialogue that isn’t just a means to an end. When you treat people as people, and as community members who have the same values that you do in your own community—things like quality of life—when relationships are honest and meaningful, that will carry you through the rough times. I’ve got some very clear marching orders as far as a representative on the ground to do innovative work in a collaborative way so First Nations feel that they’ve benefitted from our presence in a self defined way.”

While some companies focus only on the bottom line (we’ll give you this, in exchange for), Proulx says that kind of thinking doesn’t lead to long-term relationships. “Long-term agreements between a company and community is something we’ve incorporated into how we do business. It’s an emerging practice in our company, but it really sets forth a formal, clear working relationship between the two that covers how you agree to engage on your company’s activity in their territory. It covers how are you going to work together to distribute equitable benefits to the community and its members, be it business opportunities, training, etc.

“The other piece is realizing that you are impacting a nation’s territory and their constitutionally established rights. You are making wealth in their back yard. What are you going to contribute back, financially.”

The IBA Community Toolkit points out that a willingness to negotiate is not consent. “At the start of negotiations, communities have only limited information about a proposed project and the developer’s willingness or ability to meet community needs,” says the Toolkit. “As more information becomes available, the community may decide a project is not acceptable in principle, or that the conditions that would make it acceptable cannot be negotiated with the developer. In either case, and at any point in the negotiation, a community has the right to terminate the negotiation process.”

The Toolkit also points out that “information is power,” and that a sound and comprehensive information base is critical. Proulx agrees. “We cannot expect them to engage, to respond, to review and participate without some sort of capacity support,” he says. “This is not something the Nations should foot on their own. We should recognize that the northeast is very busy, and the Nations are busy, too. That combined with a lack of capacity and time, we as a company have to put some resources into it, in a way the community wants them placed.”

In Teck’s case, they are supporting a First Nations Independent Technical Review. This, says Proulx, is one of the big success stories in Quintette’s run-up to restart. “What happens is a company comes and plops down binders full of technical information on the nation’s table and say ‘please provide feedback in the next X days.’” This, he says, is not usually realistic.

“What the nations suggested, and what we offered to do, is provide third-party support in the form of consultants. In this case, five nations decided to work together to co-manage the review. We provided them the equivalent expertise that went into making this: wildlife experts, hydrology experts, and on it goes, and a list of issues was created.”

The list, says Proulx, identified gaps in the information that the company was bringing to the table. “By the beginning of April, that list of issue has been worked through,” says Proulx. “We have worked through that list over the last six months, and the Nations have got to the point where they’ve stepped back and said, this process worked.”

It hasn’t always been easy, says Proulx. “Yes, there were rough spots, yes we had to hash things out, but because we respected their opinions, because they were honoured and valued, we were able to work through a laundry list of issues, which we can now use to fill in the gaps in information, enhance others, and incorporate a wider scope to others. These practical ways that we are able to bring the application up to snuff so the nations can say we can honestly evaluate your proposal fully, and from a community perspective give you a yay or a nay.”

While there is a still a ways to go before Quintette gets a response from the local First Nations communities, Proulx says they’ve come a long way, and the process has been very successful.

And if the communities support Quintette? The next step, says Proulx, is implementation. “That’s another philosophy we carry. Engagement happens as early as possible, continues through the project life and even beyond once the project is put to bed. There are ways to involve the nations in helping inform and carry out closure plans and reclamation. These are concepts we are open to. Some we have suggested ourselves. Its things like this that bridge the relationship between the nations and the company. It takes you past corporate rhetoric and means something.”

Aboriginal rights have become a reality that mining companies must recognize as they explore for deposits, plan to develop new mines, and operate and close existing ones. Some companies, like Teck, take engagement seriously and are working with the communities to come up with solutions that work for everyone.

But this is not always the case. On 2011, the BC Court of Appeal suspended a permit allowing First Coal Corporation to explore for coal in the habitat of a the Burnt Pine caribou herd, which in turn was upholding a decision of the BC Supreme Court that the government had not adequately consulted the West Moberly First Nations on protecting the Burnt Pine caribou herd.

The decision showed that First Nation rights, while not approval rights or veto rights, are still a powerful tool, and when an Aboriginal Community does not feel like they have been consulted with properly, can be used to slow down or even halt a project.

Further work is required to clarify of Aboriginal rights with respect to resource development and in the review of mining project proposals. Unsettled land claims elsewhere in the north, and specific grievances are issues that governments must resolve. But for now, companies like Teck are taking a leadership role in talking with First Nations, and in working together to come up with solutions that work for all parties.