Canada: Mining, People And The Environment - Law: Duty To Consult

Relations between Canada's First Nations communities and mining companies continue to evolve with new case law, legislation and industry practice.

It has been almost 10 years since the seminal decision Haida Nation versus British Columbia (minister of forests). This ruling first articulated the constitutional duty of the Federal and Provincial Crowns to consult with First Nations in making decisions that may adversely affect as yet unproven aboriginal rights and title claims. The duty to consult has since developed considerably. Subsequent court decisions have clarified and refined the parameters of the duty.

The ways in which Canadian and international mining companies work with First Nations communities has also evolved and important lessons have been learned. By law, the duty to consult with and accommodate only applies to government. And the duty to consult does not include a veto over development for First Nations communities. In practice, mining developments will work to accommodate communities' concerns through mitigation measures and local project benefits.

The reality is that mining companies have just as much of a stake in this approach – it is now an expected standard of practice and good business.

Consultation must be meaningful

Case law and experience have shown that if consultation with First Nations is not meaningful, mining projects will likely stall or fail. In the 2011 West Moberly First Nations versus British Columbia (Chief Inspector of Mines) decision, the Court of Appeal of British Columbia ordered the suspension of mining operation permits because the province's consultation process was not meaningful.

The court found inadequate consultation concerning the potentially adverse impact on a caribou herd and the ability of the First Nation petitioners to hunt this species in its feeding grounds. Leave to appeal of the decision was sought at the Supreme Court of Canada, and denied.

Consultation should be a genuine and a potentially long-term relationship with the community or communities that may be affected by a project. To effectively work with First Nations, in the context of the Crown's duty to consult and accommodate, companies should engage early on in a project and provide timely information. Personal interaction is key.

There are many diverse First Nations communities across Canada and their concerns about development can differ. In some cases, the priority is on economic development, while in others it is environmental or territorial. Partnerships, equity or joint ventures may be priorities as well. This is where engagement and consultation and a mutually respectful relationship with local communities allows a company to understand what the community is most concerned about and why.

Agreements with First Nations

Entering into formal agreements with First Nations have proven to be successful for mining projects. They can provide companies with an effective and efficient engagement process that could be included into an Exploration Agreement (for initial or advanced exploration) or in a Memorandum of Understanding to set out the manner in which the parties agree to move forward.

Agreements can address capacity issues and funding for First Nations supports community efforts to plan and undertake a Traditional Ecological Knowledge mapping programme, as well as for discussing employment, training and economic development opportunities with First Nations. Companies should also consider, where appropriate, the opportunity of entering into Impact and Benefit Agreements with First Nations to provide certainty for the project.

As far as the duty to consult with First Nations communities has come in the last decade, new government guidelines, policies and court decisions across Canada continue its evolution. Mining companies are a key part of this journey.

Provincial policy

Newfoundland and Labrador has seen the most controversial policy. The province's Aboriginal Consultation Policy on Land and Resource Development Decisions was released in April 2013 and requires proponents to pay the costs of consultation and of accommodation. Proponents are also expected to provide information regarding short-term and long-range use or development plans for an area.

Quebec's Mining Act has been substantially amended and modernised by Bill 70, which the Quebec National Assembly adopted on December 9, 2013. The Act now contains three provisions that relate specifically to aboriginal communities, including a provision that the minister is to draw up an aboriginal community consultation policy specific to the mining sector.

The Act also states that it is to be construed in a manner consistent with the obligation to consult aboriginal communities and requires the minister to consult aboriginal communities separately if the circumstances so warrant. What those circumstances might be, however, has not been clarified.

The policy focus in Ontario is on the early stages of mineral exploration. The province entrusts important responsibilities in the hands of developers and proponents should be prepared to contribute to community capacity needs.

The Ministry of Northern Development and Mines (MNDM) must be satisfied that consultation with affected First Nations communities has been appropriate prior to making a decision whether or not to issue a permit. MNDM encourages proponents to make efforts to reach arrangements with aboriginal communities. Major amendments made to Ontario's mining laws in 2012 and 2013 codified consultation requirements that apply to both junior and major mining exploration companies.

In Alberta, consultation is delegated to proponents in most cases. The negotiation of project impact benefit agreements remains optional. The province is prepared to enter into specific consultation process agreements with First Nations and a programme will be developed to increase capacity funding for First Nations and fund the programme through an industry levy.

Proponents will be required to provide the Aboriginal Consultation Office (ACO) with all consultation related agreements signed with First Nations. As of November 1, 2013, the ACO merged some services provided by the Stewardship Branch of Environment and Sustainable Resource Development with some services provided by Consultation and Land Claims Division of Aboriginal Relations in order to manage all aspects of consultation.

The courts

Canadian courts have clarified many elements of the duty to consult. However, an important question remains: do past projects, cumulative effects and future developments change the scope of the duty to consult?

For First Nations communities, the basic issue is how much land is sufficient land to exercise traditional activities. In Rio Tinto Alcan versus Carrier Sekani Tribal Council (2010), the Supreme Court of Canada explained that a duty to consult arises from current government conduct and is limited to the specific Crown proposal at issue and not to a larger project of which the current proposal merely forms a part. However, this case is probably not the end of the story.

The British Columbia Court of Appeal has indicated that, while the duty to consult does not involve addressing past wrongs, it is essential to take into account the historical context in order to have a proper understanding of the seriousness of potential impacts. The BC Court also said that consideration of future impacts, beyond the immediate consequences of the exploration permits, may come within the scope of consultation.

International trade deals?

Last year brought a potentially radical enlargement of the duty to consult – one that aimed to expand it beyond Canada's borders. The Canadian and Chinese governments signed an investment agreement (CCFIPPA) at the APEC Summit held in Russia in September 2012.

However, the Hupacasath First Nation (HFN) opposed the deal because the federal government failed to consult the band before signing. The HFN claimed that a ratified and implemented CCFIPPA will negatively affect it in a number of ways. The issue that went before the federal court was: does Canada have a duty to consult the HFN prior to ratifying the agreement?

In August 2013 the Federal Court found that the Government of Canada did not have a duty to consult the HFN prior to ratifying the CCFIPPA, because the potential adverse impacts asserted were non-appreciable and speculative in nature.

This is a new approach to watch. It is the first time that a First Nation has gone up against the ratification of such an agreement. If future international trade deals are challenged, the court might tell the government to consult the First Nation in question and return with the results. The court could find the arguments made during the consultation to be sound and order the government to insert or redraft new provisions within the treaty, ensuring aboriginal rights are protected.

Looking ahead

When mining companies have the duty to consult with one or more of Canada's First Nations communities on projects, a strong relationship can yield many benefits and avoid costs including litigation and delays. A poor relationship can result in the project's failure. This area of law and community relations will continue to evolve.

Mining companies, First Nations and governments must keep working so that resource development projects both become successful and minimise or eliminate potentially adverse impacts on existing or asserted treaty rights.

Originally published in MPE Magazine, April 2014.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright Canada LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright Canada LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions