Agreements Between First Nations and Other Levels of Government
BC Mining Issue:The Crown’s legal duty to accommodate does not require the Crown to obtain First Nation’s consent.
Fair Mining Best Practice:First Nations’ resource policies can require that agreements be signed before they will give consent.
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.”
Accommodation Agreements are negotiated between a First Nation and the provincial government.
The term “Accommodation” refers to the Crown’s duty to address First Nations’ concerns and attempt to solve conflicting interests. Accommodation is often described as the outcome of the consultation process.
However, under current BC law, the Crown’s duty to accommodate does not require granting First Nations’ a right to consent. Nevertheless, Accommodation Agreements are often negotiated with First Nations, and can establish financial participation, shared decision making processes, and participation in the regulatory process.
Accommodation Agreements should fulfill these minimum requirements:
• Financial resources so that First Nation communities can participate fully in the process.
• Economic benefits for your community.
• Participation in the regulatory process of the proposed project.
See “Appendix B” for an exhaustive list
It’s important to know that current BC law has not clearly defined the Crown’s duty to consult with First Nations communities. As a result of this ambiguity, many First Nations have resource policies that require Accommodation Agreements be signed before consent to a project is given.
In Canada, the Crown is bound by duty and honour to consult with Aboriginal peoples and accommodate their interests by addressing their concerns and entering into shared-decision making processes.