Indigenous Rights, Consultation and Consent


In Canada, approximately 1,200 Indigenous communities are located within 200 km of mining activities. Around the world, mining activities are often carried out with little regard for, and in violation of, the rights of Indigenous peoples on whose traditional territories the mines are located.

Canada is a signatory of the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which recognize that Indigenous groups have vested rights owing to their historical possession and occupation of the land. Canada is also a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which enshrines the principle that Indigenous peoples have the right to participate meaningfully in decisions affecting them.

As a signatory to the ICCPR and the ICESCR, Canada is bound to respect the special relationship that Indigenous peoples have with the land they inhabit and to protect Indigenous peoples’ rights to use their traditional land. As a signatory to UNDRIP, Canada has committed to recognizing First Nations’ right to use, develop and control their traditional territories, obtaining their “free, prior and informed consent” before taking steps that may affect their rights or the use of their land and consulting with them in good faith.

Unfortunately, both BC and the federal government have failed to create a legislative regime to ensure the protection of these rights.

In BC, First Nations rights are sometimes enshrined in historic Crown-First Nations treaties and modern land claim agreements. These agreements span only a small area of the province, leaving the majority of BC’s First Nations without control of their traditional territories. Lands not subject to a treaty are at greater risk of being exploited by logging, mining, and oil and gas interests as First Nations struggle, with limited financial resources, to regain control over their territories.

In addition to modern land claim agreements, First Nation communities seeking to protect their traditional territories may attempt to do so in the courts. Over the course of a number of cases, Canada has developed an extremely complex, costly and difficult common law test for recognizing and protecting Aboriginal rights and title. To bring a case in Canada seeking recognition of Aboriginal title can cost a First Nation tens of millions of dollars and take decades to conclude. Often, the Crown will raise dozens of technical issues and create significant delays, which result in further costs to the First Nation claiming the right.

It doesn’t have to be this way. A number of countries, and even other provinces in Canada, have enacted legal provisions that explicitly protect several types of internationally recognised Indigenous rights. These provisions include recognizing and affirming Indigenous rights in mining legislation, supporting the preservation and development of Indigenous culture, and protecting Indigenous peoples’ rights to traditional use of land. Also, recognizing that traditional knowledge is an important method of promoting meaningful participation of Indigenous peoples in decision-making, a number of other jurisdictions have also made strong commitments to protect and promote Indigenous knowledge. These include granting equal weight to traditional and scientific knowledge, requiring the protection of Indigenous knowledge, protecting Indigenous languages and protecting the confidentiality of traditional knowledge. Additionally, innovative laws in other jurisdictions recognize Indigenous legal systems in legislation, considerIndigenous customary law in the exercise of legal functions and powers, recognise Indigenous people’s right to self-governments, and provide funding to help Indigenous peoples develop their own mining regulatory programs. The right to a healthy environment is also recognized in a number of jurisdictions. Perhaps most importantly, Indigenous peoples’ right to own and manage their traditional territories is recognized in Constitutions and laws around the world. BC needs similar laws.

Intertwined with the issues surrounding traditional territories is the Crown’s duty to consult. Canada’s courts have recognized that provincial and federal governments (the Crown) must act honourably in all dealings with Aboriginal peoples. Part of the honour of the Crown is the duty to consult with Aboriginal peoples and to address their concerns in decision-making processes. However, BC mining law does not explicitly provide a clear process for consultation.

Other jurisdictions have addressed uncertainties around consultation through innovative legislation that creates a clear process for consultation for decisions relating to mining activities, requires consultation as a perquisite for a mine permit, establishes a participatory decision making process and bases dispute resolution mechanisms on traditional legal systems and governance. BC could bring clarity to consultation requirements through similar laws.

The duty to accommodate flows directly from the duty to consult. Compensation, in the form of land or natural resource transfers, is one of the main approaches to accommodation. Unfortunately, the only persons who are currently entitled to compensation under BC’s mining laws are landowners. BC’s definition of “landowners” does not currently include First Nations with aboriginal title and there are no provisions explicitly providing compensation rights to First Nations.

Stronger legal provisions have been enacted in other jurisdictions to ensure that compensation is provided to Aboriginal peoples for disturbances caused by mining activities. These provisions include recognizing compensation as a form of accommodation, requiring compensation as a precondition for a mining permit, and requiring revenue sharing for resource development on traditional territories.

Finally, although the duty to consult and accommodate First Nations is required under Canada’s laws and Constitution, their free, prior and informed consent is currently not required in advance of mining activities on traditional territories. Unlike Canada, numerous other jurisdictions require free, prior and informed consent. One way of showing that consent has been given is by negotiated agreements, a requirement in some jurisdictions. BC should adopt similar legal provisions.

In conclusion, Aboriginal rights in BC lag behind both legal precedent and international law. Canada has signed international treaties and declarations that recognise Indigenous peoples’ rights to use traditional territories and to participate meaningfully in decisions affecting them. Canada’s courts have found that the Crown owes Indigenous people a duty to consult and a duty to accommodate their interests regarding resource development on their traditional territories. However, these changes and commitments are not yet reflected in BC law. As discussed in Chapter 3, many other jurisdictions require consultation and free, prior and informed consent in advance of mining activities taking place on Indigenous territory, and have codified and protected Indigenous rights in their laws. By following this example, BC can clarify the process for consultation, accommodation, and free, prior and informed consent in the province.

  1. Introduction
  2. Aboriginal Rights in International Law
  3. Aboriginal Rights in Canadian Law
  4. Traditional Land Uses & Culture
  5. The Duty to Consult
  6. Establishing the Duty to Consult
  7. Scope and Content of Duty to Consult
  8. Role of First Nations in Consultation Process
  9. The Duty to Accommodate
  10. Overview of BC Law
  11. Free, Prior Informed Consent
  12. Overview
  13. Footnotes

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