Indigenous Rights, Consultation and Consent

Overview of BC Law

The duty to accommodate flows directly from the duty to consult, as accommodation is the outcome of the consultation process.139In Canada, accommodation must fall within the range of reasonable outcomes in the circumstances.140 According to the Supreme Court of Canada, “where consultation is meaningful, there is no ultimate duty to reach agreement. Rather, accommodation requires that Aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns.”141
Unlike the other jurisdictions described in the following section, the Crown’s duty to consult and accommodate in BC and Canada does not currently require First Nations’ consent, nor does it grant First Nations the power to veto government decisions. Nevertheless, consultation may oblige the Crown to make changes to its proposed actions to incorporate First Nations’ views and concerns142 Accommodation may also include the Crown requiring third parties to implement measures for minimizing or avoiding the impact (such as evaluating alternative means of development) and potential compensation where issues cannot be adequately resolved.143


In Canada, the courts have recognized that the Crown must do more than simply have a process in place when Aboriginal people raise concerns: the Crown must also consider how to accommodate those concerns.144 One of the main approaches to accommodation is by way of compensation, which may occur by way of land or natural resource transfers, cash or resource revenue sharing.145 The only persons who are currently entitled to compensation under BC’s mining laws, however, are landowners.146 “Landowners” does not currently include First Nations with aboriginal title and there are no provisions explicitly providing compensation rights to First Nations.

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Recognize compensation as a form of accommodation

[Tags: Compensation; Accommodation; Duty to Accommodate] Other jurisdictions have enacted stronger legal provisions to ensure that compensation is provided to Indigenous peoples for disturbances caused by mining activities. In Sweden, compensation must be paid to reindeer-herding rights-holders (Indigenous Sami people) if their interests are damaged or encroached upon as a result of exploration activities. Payment may be required to compensate for reduced grazing acreage and for relocating reindeer herds past the area designated for mining.147 Similarly, under Norwegian law, Indigenous reindeer herders are entitled to compensation for expropriation of the right to use lands for reindeer husbandry.148 In Australia’s Northern Territory the regulatory authority may, before granting, renewing or varying a mining interest, require the miner to post security for compensation due to the effect of mining activities.149 Under the Ecuadorian Constitution, Indigenous peoples are granted the Constitutional right to compensation for any social, cultural and environmental damages caused by mining activities.150

Require compensation as a precondition for mining permit

[Tags: Compensation; Accommodation; Duty to Accommodate; Condition] The requirement to pay compensation is afforded greater legal weight if it is incorporated as a condition or obligation of the mining permit In Canada’s Northwest Territories, neither the Gwich’in Land and Water Board nor the Sahtu Land and Water Board may issue, amend or renew a licence unless the miner and the Indigenous community have first entered into an agreement to compensate the Indigenous community for “any loss or damage resulting from any substantial alteration to the quality, quantity or rate of flow of waters when on or flowing through its first nation lands, or waters adjacent to its first nation lands”.151 Specific considerations are also specified for determining the amount of compensation payable.152

Require revenue-sharing for resource developments on traditional territories

[Tags: Indigenous Rights; Compensation; Revenue-Sharing] Under the Bolivian Constitution, Indigenous peoples are guaranteed rights to profit-sharing from the exploitation of natural resources (including mineral deposits) within their territories.153 Similarly, under the Ecuadorian Constitution, Indigenous peoples are granted the right to participate in the profits earned from mining activities.154

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