The Duty to Consult
BC Mining Issue:BC’s mining laws do not explicitly provide a clear process for consultation with First Nations affected by mining activities.
Fair Mining Best Practice:Establish a clear process for consultation for decisions relating to mining activities, and require consultation as a precondition for issuing mining permits.
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.
The duty to consult is often evoked in government decisions related to mining. This is because mining activities can threaten the ability of Aboriginal peoples to exercise their Aboriginal rights. Having a clear, legislated consultation process may serve both parties in reaching ethical decisions about mining explorations on traditional territories.
The consultation process includes three main components:
- Establishing the Duty to Consult
When mining activity is proposed, the Crown is constitutionally obliged to consult First Nations peoples who are potentially (and adversely) affected by mining activities.
- Scope and Content of the Duty to Consult
When a duty to consult is found, the scope and content must then be determined. Determining the scope and content of consultation is unique to every case but is ideally based on the seriousness of the potential effect upon the right or title claimed.
- Role of First Nations in Consultation Process
Along with the Crown’s obligation to consult, it is also the obligation of First Nations to reasonably and fairly participate in the consultation process. However, First Nation participation in this process is often very difficult because of capacity and financial demands.
Although the duty to consult is mandated, it is important to know that BC’s mining laws do not provide a clear guidelines as to how this consultation should occur. The following guidelines for consultation would allow for more equitable participation in the process.
- Establish a clear process for consultations dealing with mining activities.
- Require consultation as a precondition for mining permits.
- Base dispute resolutions protocols on traditional systems of governance.
- Establish participatory decision-making processes.
Participatory decision making in Finland requires that the permitting authorities work together with the Sami Parliament to determine the effects of proposed mining activities before permits are granted.