Across Canada, there is much debate about the Crown’s duty to consult and accommodate Aboriginal rights and interests in the context of mining and resource development. While the debate is important, above and beyond what the courts may decide and what provincial governments and the federal government may do, mining developers who want to have longer term successes need to think seriously about their consultation, accommodation and relationship-building with Aboriginals.
Small steps beyond the standard build better working relationships with Aboriginals
Research mining and development protocols
Research the Aboriginals near the general area of your mining interest. The Aboriginal Profile Interactive Map by Aboriginal Affairs Canada, available online, provides basic information about every Aboriginal group in Canada, as well as links to the websites of most Aboriginal and Tribal Councils where you will often find mining and development protocols, which set out procedures an Aboriginal or a Tribal Council would like mining developers to follow regarding any proposed activities on their traditional lands. If an Aboriginal or a Tribal Council sets out consultation guidelines, a mining developer should take notice of them. Failing to do so is likely to be regarded as a sign of disrespect and will not be helpful in establishing a trustful relationship.
If an Aboriginal group and its Tribal Council do not have a mining and development protocol, a good first step is to send a letter from your CEO to chief and council and to follow up with a personal phone call asking for a meeting. At the first meeting, the CEO should be open and clear about the project so there is no miscommunication, explaining what the mining interest is, what activities you would like to undertake, and where the activities are located on the traditional Aboriginal lands. It is important to ask chief and council for their views, concerns and priorities. Avoid placing a boilerplate consultation document on the table in early meetings with chief and council, as doing so suggests you do not care about the issues, interests and concerns of the Aboriginals, and regard consultation as mere legal formality.
Share technical data and information
The Aboriginal group will raise issues a mining developer should be prepared to discuss. For instance, it will want to know what impact proposed activities will have on the land and on traditional activities like hunting, fishing and trapping. You will be asked how adverse impacts on the land can be mitigated or compensated for, as well as how activities can potentially benefit members of the Aboriginal group in terms of training, employment and business opportunities.
The Aboriginal group may ask for technical data and information. It is advisable to share this information, but on the basis that it is strictly confidential. You may also be asked to conduct local studies to provide information on natural resource or environmental issues like water quality. Be prepared to undertake these activities, pursuant to a Letter of Understanding which specifies what is being undertaken, what it will be used for, and what you will pay for.
Be open to discussion
If you are asked to hold a community meeting with Aboriginal members, it is advisable to do so. Ask the chief and council for advice on how a community meeting should be organized, what information to present and how it should be presented. It does not matter that a community meeting was held at a nearby municipality. Aboriginals do not see themselves as just another stakeholder. Aboriginal Treaty and Aboriginal Rights are protected by the Constitution. The meeting should be held in, or as close as possible to the community, unless chief and council advise otherwise.
If the community meeting is successful, you may be able to proceed with an exploration agreement. At this stage, the CEO can hand off responsibility for more detailed meetings to a lieutenant who has attended earlier meetings so the trust building continues.
If you are not able to move to the next stage immediately, do not assume that you have wasted money and time. Aboriginals have their own dynamics and priorities. Patience, respect and transparency will take you a long way. More than one Aboriginal group has initially been wary of mining development, but given time, has built a good working relationship with the mining industry.
Howard Hampton, counsel at Fasken Martineau, works in four main areas: government relations, corporate social responsibility, First Nations issues and the global mining group. Before joining Fasken Martineau, he was a member of the Ontario Legislature for 24 years and leader of the New Democratic Party of Ontario for 13 years.