Mining Companies Benefit from Long-term Relationships With First Nations
First Peoples Law
Dr. Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. His work includes both litigation and negotiation on behalf of Indigenous Peoples across Canada. Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada. His recent and ongoing work includes an Aboriginal title claim by the Mi’kmaq for 1/3rd of the Province of New Brunswick, representing Anishinaabe First Nations of northern Ontario in the proposed Ring of Fire development and in negotiations for joint-decision making with the provincial government, and representing a Nakoda First Nation in Saskatchewan to resolve century-old treaty violations.
First Peoples Law is a Vancouver-based law firm dedicated to defending and advancing Indigenous Peoples’ Aboriginal title, rights and Treaty rights. The firm is committed to providing high-quality, principled legal services to Indigenous Peoples while actively participating in public education.
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1- Canada’s mining sector is gradually moving away from the small-scale economic perks for Indigenous communities, which were common as recently as 10 years ago, and instead shifting towards a more inclusive approach. Increasingly, Indigenous people are included in the decision-making process and are in some cases even taking equity positions in mining projects on their territories.
2- Sophisticated mining companies with proposals for projects on First Nations land and governments need to provide educational resources and opportunities for Indigenous people to acquire the skills they need to take full advantage of the careers these projects provide. This is a long-term goal and not something that can be addressed quickly because it requires systemic changes.
3- Changes to Canadian law are gradually affecting environmental assessments and reviews but the final impact of that shifting legal framework has yet to be determined. Federal, provincial and municipal governments all have a say in aspects of mining developments and that interlocking set of regulations can make it difficult for Indigenous people to have their voices heard because they can get caught between these levels of government.
Indigenous youth need to carefully think about the decisions they will make regarding the natural resources their communities have historically controlled in their territories and then make decisions about their lands and water. By engaging with all levels of government and making sure their Aboriginal and treaty rights are respected, Indigenous youth can both revive the history of their ancestors and develop long-term relationships with governments to create careers and gain equity stakes in mining developments in their territory.
Indigenous communities across Canada vary in their views towards resource companies but what are some of the key characteristics of the mining industry’s relationship with First Nations communities?
One of the commonalities we see is that Indigenous people expect resource companies and the government to come to the table and seek consent for the exploitation of their lands and waters, and to involve them in all decision-making. So, while the outcomes, the visions and the objectives may be different, what I see that is common is a focus on requiring Indigenous consent.
We continue, unfortunately, to operate largely on the basis of non-Indigenous people coming in and making proposals to exploit Indigenous lands. That is where the mining industry usually begins. Mining companies may involve Indigenous people up to a certain point but too often it is people from outside who make proposals to exploit the lands of Indigenous people and then Indigenous people are forced to try to fit into that as best as possible. It’s important to change that whole approach and instead have Indigenous people working in partnership with non-Indigenous people so everyone can benefit, and the lands can be maintained and kept safe for at least seven future generations.
“Landmark cases affirming the rights of Indigenous people have led more mining companies to recognize that they must work hard to get Indigenous consent if they are going to be operating in an Indigenous people’s territory.”
Landmark cases affirming the rights of Indigenous people have led more mining companies to recognize that they must work hard to get Indigenous consent if they are going to be operating in an Indigenous people’s territory.Ten or twenty years ago, resource companies were focused on providing small-scale economic benefits for local Indigenous people. Now, the trend is definitely in the direction of involving Indigenous people in decisions and working on processes to ensure that Indigenous people are in a position to give their consent or, at times, deny it.
What specific actions are needed to ensure that the participation of Indigenous peoples continues to grow as recommended by the Canadian Minerals and Metals Plan?
If plans to exploit mining resources are going to have real, positive outcomes for Indigenous people, they have to be at the forefront of planning and execution.Indigenous people need to be involved in both developing and executing the plan. Too often, mining projects are developed with Indigenous input but not executed with them.
Indigenous people are often involved at the production level and during the exploration phase. That is where you see their involvement most of the time. But more sophisticated mining companies try hard to get Indigenous people involved at all levels, including the decision-making process and as partners in the investment.There are even opportunities for Indigenous equity investment and more and more of that is happening across the country.
Indigenous people have an opportunity to develop careers through the mining projects on their land. But, dealing with that can be difficult for individual companies and I think this is where provincial and federal governments can play an important role. They can ensure that not only are the jobs there but that careers are too, and that Indigenous people have the skills and the opportunities to take advantage of them. This needs to be addressed through systematic changes and is a long-term goal. It cannot be done quickly. A lot of Indigenous people do not have the same educational resources as non-Indigenous communities just a few miles away. It is just a fact that many Indigenous people are at a real disadvantage when it comes to putting themselves in a position to take advantage of new career opportunities. Governments, both federal and provincial, need to work together with industry to rectify that reality.
What is the Canadian mining industry doing right and what is it doing wrong when it comes to its relationship with Indigenous communities?
On the right side, mining companies are increasingly coming into Indigenous communities with a blank slate, wanting to listen. That is very, very important. It’s how you begin that conversation. Hopefully, those companies are also working with an eye to develop a long-term relationship. The degree of commitment to that differs depending on the particular company, what stage of development they are at, and which Indigenous community is involved, but that is how they start to do things right.
Mining companies taking this approach are definitely still the minority. It often depends on which part of the country the mine is in. Many junior mining companies have less capacity and are less sophisticated in their relationships with Indigenous people. That is one of the concerns when government downloads obligations to mining companies that have neither the ability nor the interest to properly engage with Indigenous people.
On the other side is the old-style approach – which, unfortunately, is still too often seen across the country – where mining companies come in having already decided what they intend to do. They may offer a few benefits to Indigenous people but are not seriously interested in sitting down with them, treating them with respect, and working towards the development of a true partnership.
In British Columbia, there is more experience in seriously engaging with Indigenous people but even in BC not all companies do a proper job of this. I can think of a few mining companies in BC that are unfortunately the poster children for what not to do. However, on the whole, I think the level of engagement and the expectations in British Columbia are much higher than in the rest of Canada.
For Indigenous communities working with the mining sector to develop natural resources, what is the impact of Canada’s regulatory environment being spread across three levels of government?
It all depends on the particular situation but Indigenous people often end up in a difficult position because they are caught between federal and provincial and, at certain times, municipal jurisdictions. The different levels of government make decisions that affect Indigenous communities and there is overlap and no way to step back and take a look at how all these decisions are interlaced. That is why it is important for all levels of government to work together with Indigenous people on a wider vision for community planning and regional development.
Federal laws are in transition and these changes often become part of environmental assessments and reviews for resource projects. The changes occurring are not likely to move as far or move as quickly as Indigenous people would like, but they are definitely moving in the right direction. The proof will be whether or not these will just be modifications in process or whether they will result in substantive changes in decision-making. The federal government’s track record on Indigenous consultation is not great but I remain an optimist. Hopefully we are moving towards a situation where Indigenous people are more routinely involved with the federal government in making decisions in resource projects’ pre-planning stages and not just being consulted about decisions the federal government intends to make.
Indigenous people look to the future and want to protect their lands and waters, so sustainability is at the forefront for them – and this feeds into consent. A lot of resource companies operate on a much shorter timeline so it is sometimes hard for mining companies to wrap their minds around the fact that Indigenous people are not thinking 20, 30 or 40 years in the future – they are thinking generationally.
How should the relationship between Indigenous community leadership, industry and government be fostered to ensure real mutual benefit and long-lasting cooperation?
Some provincial governments across the country and in the North agree that revenues from natural resource development should be shared with Indigenous people on a government-to-government basis. However, it’s important to keep that separate from the relationship between Indigenous people and resource companies. Governments and companies need to acknowledge that any revenue-sharing agreements governments may have with Indigenous people are separate from any arrangements Indigenous people may make with individual resource companies.
“Governments and companies need to acknowledge that any revenue-sharing agreements governments may have with Indigenous people are separate from any arrangements Indigenous people may make with individual resource companies.”
The importance of mining and its supply chain to Indigenous communities all depends on where you are. In some regions of Canada, there is a lot of active mining; in others there is a lot of potential and it can become an important part of the economy. At the same time though, mining can lead to over-exploitation and Indigenous people may not receive very much of the benefits that come from the land, but still be left with the consequences. It is not just the possible benefits of resource extraction that are important – there are also Indigenous communities that experience the long-term negative impacts of resource projects.
Wider regional planning is something that is often missed when we look at particular mining proposals. Projects are not always integrated into what the wider regional vision is. So, I think it is important to step back and not necessarily always focus on one particular mining project but view it within a wider context of what both the local Indigenous and non-Indigenous communities’ aspirations are.
“Situations where Indigenous people’s position is a firm ‘no’ regardless of how a mining project might be proposed are quite rare. The possibility of Indigenous cooperation and support usually exists.”
Situations where Indigenous people’s position is a firm ‘no’ regardless of how a mining project might be proposed are quite rare. The possibility of Indigenous cooperation and support usually exists and it is realized in numerous locations across the country. Unfortunately, resource companies often lack the long-term commitment needed to foster this relationship. Like any relationship, it will only thrive if there is continued maintenance, checking in, and ensuring that consensus is still there and that, if there are issues of concern, they will be resolved in a timely way. Throughout Canada, people often look towards the Tahltan Nation in northwestern British Columbia and what they have been able to accomplish in their successful relationships with companies looking to operate within their territory. So there are examples of success. But some mining companies may put a lot of work into reaching an agreement with Indigenous people but then let that agreement wither. That can sour relationships very quickly, so there is still lots of work to do on this front.
Part of the Future of Mining Series presented by