Indigenous Rights, Consultation and Consent

Role of First Nations in Consultation Process

Coupled with the Crown’s duty to consult is the duty of First Nations to participate in the consultation process. Part of the duty of First Nations to engage in the consultation process is not to frustrate the consultation by insisting upon unreasonable conditions or taking unreasonable positions.113 However, First Nation participation is often difficult due to inadequate capacity and resources. Capacity funding to assist meaningful First Nation participation may thus be required.


Although the duty to consult First Nations is required under Canada’s laws and Constitution,114 BC’s mining laws do not explicitly provide a clear process for consultation.

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Establish a clear process for consultation for decisions relating to mining activities

[Tags: Consultation; Process]

Where substantive consultation and accommodation are going to be required, and there is no mutually agreed process in place to get to common ground, the chances of project acceptability by the First Nation are non-existent.

– First Nations Energy & Mining Council (2009)115

Aboriginal peoples in BC have recommended that the provincial government jointly develop with them a provincial-level consultation protocol that sets out the objectives, principles, standards to be employed, and procedures of consultation for all Crown land-use decision-making.116 To ensure adequate and consistent implementation, this protocol should be incorporated into legislation. This approach is already employed in some jurisdictions. For example, Yukon law outlines a clear procedure for consultation with Aboriginal peoples. This procedure requires that the duty to consult be exercised by providing the party to be consulted with:

  • notice of the matter in sufficient form and detail to allow the party to prepare its views on the matter;
  • a reasonable period for the party to prepare its views; and
  • an opportunity to present its views to the party having the duty to consult, coupled with full and fair consideration of any views so presented. 117

Similar provisions are provided under the Mackenzie Valley Resource Management Act.118 In Norway, the government has signed a consultation agreement with the Norwegian Sami Parliament, which establishes how and under what circumstances consultations should be carried out.119 In Ecuador, the Constitution mandates that “the law shall regulate prior consultation, public participation, time-limits, the subject consulted and the appraisal and objection criteria used with regard to the activity that is being submitted to consultation”.120

Require consultation as a precondition for mining permit

[Tags: Duty to Consult; Consultation; Condition]
In Ontario, mining activities cannot commence unless consultation with Aboriginal peoples has been completed.121 In addition, when deciding on an application to rehabilitate a mine hazard, the Director of Mine Rehabilitation must consider whether adequate consultation with Aboriginal communities has been carried out.122 Under the Bolivian Constitution, Indigenous peoples are granted the right to compulsory prior consultation by the state whenever legislative or administrative measures may affect them, including when non-renewable resources (such as mineral deposits) are to be exploited in the territories that they inhabit.123
In Australia, under the Native Titles Act 1993, Indigenous native title parties (claimants or holders of native title) have a right to negotiate with the government and miners in relation to the grant of mining licences.124 Under this “Right to Negotiate Procedure”, the government must give notice of the proposed “grant of a right to mine” to any registered Indigenous parties. The Government, proponent and the native title party must then “negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the [grant of the tenement] or the [grant of the tenement] subject to conditions to be complied with by any of the parties.”125 Similarly, under Finnish law, government authorities have an obligation to negotiate with the representatives of the Indigenous peoples (Sami) concerning activities that may affect their position.126 There, state authorities are also legally required to consult with representatives of the reindeer herding cooperatives when planning measures on State land that will have a substantial effect on reindeer herding.127

Establish participatory decision-making process

[Tags: Duty to Consult; Consultation; Shared Decision Making]

While native people speak with many voices, when expressing their views on non-renewable resource development, their common concern may be summarized in one word: ‘control’. Aboriginal people want control over non-renewable resource management.

– Claudia Notzke (1994)128

Internationally, the 1989 Convention 169 of the International Labour Organization (ILO Convention 169) recognizes the participatory rights of Indigenous peoples in development issues.129 For example, Article 6 of the ILO Convention, which provides that in applying the Convention, Governments shall “consult the peoples concerned… whenever consideration is being given to legislative or administrative measures which may affect them directly…”, with Article 15(2) providing:
In cases in which the State retains the ownership of mineral or subsurface resources or rights to other resources pertaining to lands, governments shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands…
Many jurisdictions have incorporated the underlying principles from ILO Convention 169 into domestic legislation. In the Philippines, for example, the government is required to ensure that Indigenous peoples are given mandatory representation in policy-making bodies and other local legislative councils.130 In the state of New Mexico, tribal governments have decision-making authority even over non-tribal activities if those activities affect the tribal water resources.131
In Finland, the permitting authority must work co-operatively with the Sami Parliament and the local reindeer herder’s association to determine the effects of proposed mining activities before granting the permit. Such consideration requires examination of cumulative effects from other mining and non-mining activity, both within and proximate to Sami territory.132 Permits will not be issued in the Sami Homeland if “alone or in combination with corresponding permits and other forms of land use would, in the Sami Homeland, undermine the fundamental preconditions for engaging in traditional Sami means of livelihood or otherwise for maintaining and developing the Sami culture”, unless such effect can be mitigated by conditions on the permit.133
In light of growing pressure to involve First Nations in decision-making regarding mineral tenures, BC could enact similar legislation to provide First Nations with participatory rights for mining-related decisions.134 Indeed, BC has already begun to explore participatory decision making for the extraction and management of natural resources, as is set out in the Haida Reconciliation Act.135

Base dispute resolution mechanisms on traditional legal systems and governance

[Tags: Consultation, Dispute Resolution; Traditional Laws; Governance]
Ontario is the first Canadian jurisdiction to introduce a dispute resolution process for disputes on matters arising under the mining legislation that relate to consultation with Indigenous peoples and the assertion of their rights.136 This is an important first step. In the Philippines however, legal provisions go further by providing that in any disputes involving Indigenous peoples, “customary laws and practices shall be used to resolve the dispute”.137

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