“Take care of the land and water and the land and water will take care of you”
– BC First Nations Energy & Mining Council (2008)10
First Nations’ resource policies generally contain principles that guide the decision-making of First Nations’ governments. These guiding principles are essentially standards that are applied to evaluate proposed resource developments. For example, one common guiding principle is non-opposition to resource development provided certain requirements are upheld during mining activities.11 Below are some other examples of guiding principles from various First Nations’ resource policies.
Resource policies often define what consultation means from a particular First Nation’s perspective.12 The Wahnapitae First Nation’s Resource Development Policy defines consultation as a two-way dialogue that facilitates the exchange of information to assist in making fully informed decisions.13 Consultation is also generally described as an ongoing process through all stages of mining activities. Ongoing consultations often requires companies to report to the First Nations community before, during, and after mining activities are carried out.14
Other First Nations’ resource policies provide a more detailed definition of consultation.15 For example, the Teslin Tlingit Council Mining Policy defines consultation as providing, in good faith, the following: 16
- notice in sufficient form and detail to allow the First Nation to prepare its views in the matter;
- sufficient time for the First Nation to prepare its views on the matter,
- an opportunity for the First Nation to present its views to the consulting party;
- sufficient resources to retain appropriate expertise;
- adequate financial and other resources to ensure equity of bargaining strength;
- full and fair consideration of the views presented;
- a demonstrated integration of the interests and concerns presented; and
- full disclosure of the effects of the proposed project.
Consistency with First Nations’ Land Use Plans
Land use plans, while time-consuming and costly to produce, are a tool that First Nations can use to identify what parts of their traditional territories are necessary or suitable for different activities. Land use plans can classify areas required for traditional land uses and protections, such as harvesting areas, salmon spawning streams, moose calving areas, etc. Land use plans can also identify cultural heritage sites. Assembling traditional knowledge of elders, and conducting baseline studies into existing cultural and environmental conditions can support the development of land use plans. Once assembled, First Nations can use this information to identify areas of their territory where resource extraction may be appropriate.
First Nations who already have a land use plan, such as the TRTFN, can refer to their plan in their resource policy. Under the TRTFN Mining Policy, for example, the lands and resources manager must determine if a proposal is consistent with any TRTFN land use plan.17
Protection of Cultural Activities & Heritage
A common guiding principle among First Nations’ resource policies is the protection of cultural activities and heritage. The TRTFN Mining Policy, for example, states that the TRTFN Government will ensure that all mining activities and developments in TRTFN territory will promote environmental, economic, social and cultural sustainability.18 Cultural sustainability is defined in the TRTFN Mining Policy as meaning that projects do not:19
- interfere with individual or collective rights involving land-based cultural pursuits;
- interfere with the health and well-being of the natural resources on which Tlingit land-based cultural pursuits depend;
- infringe or adversely impact the Aboriginal rights that support TRTFN culture; or
- interfere with or create obstacles to the transmission of land-based culture and practices to future generations.
Some First Nations’ resource policies also address cultural heritage sites. The Champagne & Aishihik First Nations’ Best Practices Code for Mining, for example, explicitly distinguishes the non-renewable nature of heritage resources and recognizes that an absence of registered sites does not automatically indicate that there are no heritage concerns.20 Under the Innu Nation’s Guidelines for the Mining Industry, the Innu Nation must be involved in an archaeological survey of any areas potentially affected by exploration activities before they start. In the event that a burial or archaeological site is identified during mining activities, miners must suspend operations and contact the Innu Nation to determine appropriate next steps.21
Many First Nations’ resource policies include environmental stewardship (sometimes called environmental sustainability) as a guiding principle.22 This principle can be sub-divided into related concepts, including:
- measuring cumulative impacts;
- considering the land’s carrying capacity;
- protecting critical habitat for fish or wildlife;
- safeguarding water quality and quantity;
- adopting the polluter pays principle; and
- prohibiting activities that would cause irreparable harm.
As part of the guiding principle of environmental sustainability, the TRTFN Mining Policy requires that:
- it is reasonably certain that any environmental impacts are adequately understood and can be mitigated to the satisfaction of the TRTFN;
- projects be consistent with any TRTFN land use plan;
- TRTFN play a role in environmental protection measures throughout the mine life; and
- developments take place at a sustainable pace in TRTFN territories.23
To help ensure compliance with environmental stewardship principles, the Ta’an Kwach’an Council Lands and Resources Act adopted the polluter pays principle. Their policy states that the proponent will not be released from its legal obligations until a First Nations land steward:
- conducts a site visit;
- confirms compliance with all terms and conditions attached to resource licences; and
- issues a letter of clearance.24
This principle thus requires that proponents bear responsibility for the full cost of their mining activities and the long-term care and maintenance of the mine sites.
First Nations resource policies commonly require the provision of social and economic benefits.25 Some resource policies, such as the TRTFN Mining Policy, set out these principles in broad terms, such as:
- consistency with First Nations’ long-term economic development goals;
- consistency between the scale and pace of development, the size and infrastructure of the community, and the employment and economic needs of the Tlingit and other local people;
- contribution to local economic diversity;
- provision of reasonable economic benefits and an economic benefits legacy;
- reasonable certainty for TRTFN with regards to social impacts, such as a community impact assessment;
- enhancement of the human capital of the community; and
- enhancement of the social capital of the community.26
In evaluating the socio-economic impact of a project, First Nations may consider other factors, including the:
- composition of local population;
- cohesion of community and family;
- need for social and municipal services;
- impacts to public safety and health, including drug and alcohol use; and
- management of wealth.
The social and economic benefits outlined in First Nations’ resource policies are often divided into “Employment and Business Opportunities” and “Financial Benefits and Compensation”.
a) Employment and Business Opportunities
Employment and business opportunity benefits include preferential training, employment, and business opportunities.27 Policies can identify specific roles for First Nations to meaningfully participate in a mine project,28 such as involvement in environmental data collection and identification of mitigation measures.29 These benefits do not need to be limited to mining activities: they can also include long-term alternative employment and business opportunities in non-mining related sectors.30
Some policies provide direction to proponents for hiring First Nations peoples. These policies suggest that proponents:31
- conduct interviews at First Nations community offices;
- schedule work rotations to allow employees to take part in traditional cultural practices;
- set up a mentoring program;
- provide or enable transportation to and from the work-site and assist members in obtaining drivers’ licenses;
- conduct cross-cultural orientation and training; and
- invest in education and training to build technical capacity and expertise.
b) Financial Benefits & Compensation
First Nations’ resource policies often include the guiding principle that any mining activity must have a positive financial impact on the First Nation. Financial benefits can be achieved in various ways, including royalties, revenue sharing and equitable interests in the project. The terms of such arrangements are often laid out in an impact benefit agreement between a proponent and a First Nation or an accommodation agreement between the Crown and a First Nation. Resource policies sometimes require that such agreements be finalized as a precondition for First Nations consent.
In addition to encouraging financial benefits, First Nations’ resource policies often address compensation for harm resulting from the project, including harm to First Nations’ lands, resources and interests. One of the factors listed under TRTFN Mining Policy’s definition of economic sustainability is that projects must not impose any uncompensated economic losses on the TRTFN Government or the local community.32 Another example is provided in the Nunavut Tunngavik Inc. Water Policy, which relies on its guiding principles as a basis for determining when compensation is payable.33
Intergenerational equity is another principle contained in many First Nations’ resource policies. This concept is similar to the principle of sustainability (below) and suggests that the present generation not act in a way that jeopardizes the well-being of future generations.
First Nations have sought to achieve intergenerational equity in different ways. For example, under the Inuvialuit Final Agreement, financial distributions from Inuvialuit corporations may be restricted to encourage the preservation of financial compensation to future generations of Inuvialuit.34
The Vuntut Gwitchin community of Old Crow in the Yukon invested capital from resource development in a trust for future generations, and to support cultural initiatives and priorities.35 Similarly, the Innu and Inuit in Labrador have established trusts to preserve capital paid to them under their impact benefits agreements with the Voisey’s Bay Nickel Company for the benefit of future generations.36 Another way to promote intergenerational equity is to scale back the pace of development within a traditional territory to ensure that wealth associated from mineral extraction will be available for future generations.37
Sustainable development is commonly defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.38 This concept involves consideration of economic, environmental and socio-cultural factors. It overlaps with many of the guiding principles outlined above, including the principle of intergenerational equity.39
Rather than identifying different cultural, environmental, social, and economic principles, many First Nations’ resource policies organize their guiding principles around the concept of sustainability. For example, the Cree Nation Government Mining Policy includes a sustainable development policy that recognizes the importance of:
- traditional land-use and management;
- administration of natural resources without compromising the needs of future generations;
- management of natural resources based on respect for the land;
- conservation of cultural and spiritual values and traditions;
- ecological conservation;
- restoration of damaged ecosystems; and
- application of the precautionary principle in all decision-making processes. 40
In the TRTFN Mining Policy, achieving environmental, economic, social and cultural sustainability is one of the core objectives of the TRTFN Mining Policy and a primary consideration in TRTFN’s decision-making process.41