Protecting Indigenous Rights: Consultation and Consent

The Duty to Accommodate

BC Mining Issue:BC law does not require that First Nations be compensated for mining on their traditional territories.

Fair Mining Best Practice:BC should enact strong legal provisions to ensure that compensation (and revenue sharing) is provided to First Nations for disturbances caused by mining activities.

In Canada, accommodation must reasonably balance First Nations’ concerns with the potential impacts of proposed mining projects.

Unlike other areas of the world, the Crown’s duty to consult and accommodate does not require First Nations’ consent, nor does it empower First Nations to stop any government decisions. However, participation in both processes is very important as it may oblige the Crown to incorporate views and concerns into any proposed mining activities on traditional territory.

The duty to accommodate flows directly from the duty to consult, as accommodation is the outcome of the consultation process.

Accommodation also means that the Crown is obliged to do more than simply listen to your concerns. The Crown must also consider how to accommodate those concerns, most often, by way of compensation and / or revenue sharing.

Although BC has policies that provide for revenue-sharing with First Nations affected by major mining activities, this is not a legal requirement. The province can decide how much profit to share, and the First Nation may receive nothing if the mine is operating at a break-even point or loss on paper.

Solutions to this gap in the legislation include:

  • Recognizing compensation as a form of accommodation.
  • Requiring compensation as a precondition for mining permit.
  • Requiring revenue-sharing for resource developments on traditional territories.
Under the Bolivian Constitution, Indigenous peoples are guaranteed rights to profit sharing from the exploitations of natural resources on their territories.


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