In the Canadian mining context, “accommodation” often refers to the Crown’s duty to address First Nations’ concerns and reconcile conflicting interests.68 Accommodation is often described as the outcome of the consultation process. 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”.69
At present, the common law has not defined the Crown’s duty to accommodate as granting First Nations’ a right to consent. Nevertheless, consultation may oblige the Crown to make changes to its proposed actions to incorporate First Nations’ views and concerns.70 Although the Crown is not legally required to do so, one possible form of accommodation is the provision of financial or economic benefits to First Nations.71 This form was employed in the BC provincial government’s agreement to share 37.5% of provincial Mineral Tax revenue from the New Afton Mine project with the Stk’emlupsemc of the Secwepemc Nation.72 This is part of a new provincial policy to provide revenue-sharing with First Nations affected by major mine expansions or projects. This is a policy, not a legislative requirement and the provincial government can unilaterally decide how much revenue to share, if any.73 In addition, this revenue sharing is based on mineral taxes derived from profits so a First Nation may receive little or nothing if a mine operates at a break-even point or loss on paper.
Another practical application of accommodation can take the form of shared decision-making. Some First Nations living along the central and northern BC coast have entered into “Reconciliation Agreements” with the provincial government. These agreements, although not mining related, deal with carbon capture issues and recognize First Nations’ “ownership” of the carbon values in the standing forests. The agreements provide for shared decision making and revenue sharing processes.74
Another manner of employing shared-decision making is through joint decision boards. For example, the Clayoquot Sound Central Region Board (CRB) was established in 1994 through the Interim Measures Agreement between the Hereditary Chiefs of the Nuu-chah-nulth Central Region and the Province of British Columbia. The CRB consists of thirteen members: ?ve appointed by the Province, ?ve appointed by the Central Region First Nations, one co-chair appointed by the Province, one co-chair appointed by the First Nation community, and one Elder Advisor. The Board is responsible for resource management and land-use planning in Clayoquot Sound and reviews all plans produced by any BC agency or ministry empowered to make resource management and land-use decisions. 75
The terms of the Crown’s accommodation measures can be codified in an accommodation agreement between the Crown and a First Nation. Although not required by law, many First Nation resource policies mandate that these agreements be signed before the First Nation will consent to the proposed project and before the proposed project is approved.76
Like all other agreements, the scope and complexity of an accommodation agreement will vary according to the circumstances. However, many First Nation resource policies require that accommodation agreements contain the following minimum requirements:
- provisions of technical, legal and financial resources to participate effectively;77
- financial and community benefits from the project;
- the process for First Nation peoples participation in the regulatory process;78 and
- the process for harmonizing the regulatory process with the Crown’s duty to consult and accommodate.79
For more information regarding what to include in an accommodation agreement, see the sources listed in Appendix “B”.