- Mining companies must seek aboriginal communities’ consent prior to developing mining projects on their land. Impact benefit agreements formalize this consent and are much more valuable than the vague notion of “social license”.
- Environmental consultations have helped bring mining companies and Indigenous communities together to develop stronger working relationships.
- A paradigm shift has taken place in aboriginal communities. Indigenous leaders have moved away from simply wanting their communities to participate as members of the workforce for mining projects on their territories. Instead, they are now looking for the mining industry to participate with them fully as board members and owners of mining projects.
Canadian sovereign Queen Elizabeth II needs to settle land claims and honour treaties inked by the Crown since the 1700s because the settlement of title remains the biggest stumbling block to participation in the mining industry by Canada’s Indigenous peoples.
In what way can mining companies and Indigenous peoples collaborate to reach mutually-beneficial agreements and outcomes?
When we started our association, mining companies and aboriginal communities often focused on conflict about how the lands were used. Industry always wanted to explore, develop and mine minerals whereas Indigenous communities were usually more interested in preserving their access to lands, resources, and water for their livelihood and for future generations. They also wanted to maintain and keep their culture alive. The challenge was to find something common to both industry and Indigenous peoples. That was the environment.
“We found a common denominator in the environment after all of these decades and I think if we continue building on that it can help us grow even further.”
Industry is now more focused on the environment – whether because of legislation or their own initiative – and this is very welcomed by First Nations. It encourages them to work with mining companies and to help them address environmental management.
So, we found a common denominator in the environment after all of these decades and I think if we continue building on that it can help us grow even further.Environmental policies and regulations have created a new realm of opportunities for Indigenous communities. Businesses have been set up to serve the environmental sector. Since participation in traditional knowledge studies is now required onall resource projects in Canada, there have been new educational opportunities opened up as well. This has helped Indigenous communities preserve their culture because they now actually have a way to document it and to enhance their knowledge base through participation in various environmental assessment processes.
How can mining companies get the social license they increasingly need to demonstrate before being able to proceed with projects on Indigenous lands?
“Social license” is a term I rarely use in my discussions with companies, governments and Indigenous communities.
The most common language that we hear from communities is consent. Indigenous communities want to be involved in providing authority or consent in the management of a mining project before it proceeds. That consent comes through agreements signed between aboriginal communities, mining companies and governments where all the parties accept the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and their right to give or withhold their free, prior and informed consent.
“When all companies recognize there is some form of consent from aboriginal communities required, then their projects will be able to get approved in a more expeditious manner than they are currently.”
When all companies recognize there is some form of consent from aboriginal communities required, then their projects will be able to get approved in a more expeditious manner than they are currently. Many mining industry people and aboriginal communities use the term “impact benefit agreement”. There are close to 500 such agreements which provide consent to projects in Canada now. This is how we are moving beyond social license to more formal, structured consent.
Another word I would like to see us move away from in these conversations is “stakeholder” – at least when speaking about aboriginal groups. These communities are not stakeholders – they are actually stewards of the land. They have a greater interest in mining projects than other parties since they have a rights-based interest, whereas other groups may only have financial or opportunity-focused interests.
What challenges exist in terms of mining companies securing First Nations communities’ consent for projects on their land? How can we do better on this point?
The mining industry is made up of the junior sector, which consists of the smaller mining companies, and the majors, which are the big mining companies. Unfortunately, the juniors are the trailblazers when it comes to mineral projects. They are the ones that are out front with the initial mineral discovery, and seek all the permits and permissions for a mine’s development.
“That is one of the challenges: the make-up of the mining industry itself.”
What we are seeing is that these smaller junior mining companies tend to have less experience and understanding of aboriginal groups. They need to do a better job of communicating with local communities and gaining understanding with them before their mining project can proceed and the major mining companies can come in to develop the project at scale. So, that is one of the challenges: the make-up of the mining industry itself.
Consent on the community side is also challenging because it requires coordination and the involvement of the entire community in the decision-making process. This often gets lost with all the advisors, consultants and lawyers. They sometimes have issues with how to communicate effectively with their own clients.
“The paradigm has completely shifted. We are no longer fine with framing this as aboriginal participation in mining. We are now actually talking about mining company participation in the aboriginal community.”
With many mining projects, time is money and so there is always pressure to make decisions rapidly, but the industry is quickly finding out that some decisions take a little longer with larger communities.
When our organization was first created, the big push was on how to get more employment and more business development for Indigenous communities. Nowadays, what we are seeing is the paradigm has completely shifted. We are no longer fine with framing this as aboriginal participation in mining. We are now actually talking about mining company participation in the aboriginal community.
Are you seeing and increasing number of aboriginal communities taking ownership positions in mining projects on their lands? How do you see this evolving?
Yes, definitely. Aboriginal communities are increasingly taking ownership positions in mining projects on their lands. The first step – and one we often hear about today – is aboriginal groups are getting equity interests in resource projects. Many mining companies are happy to offer equity or shared ownership. Some are increasingly offering a position on the project or company’s board.
In the future, I would not be surprised if mining companies explore the possibility of selling an interest in particular mining projects. This would resemble what is happening with the Trans Mountain pipeline expansion (TMX) right now. The trend of the future for the resource industry will be to attract more direct ownership for aboriginal communities in mining and resource projects.
For this to happen and be successful, two things are needed: respect and trust. These are the two big fundamental objectives for any kind of partnership, and this is what aboriginal community leaders have always sought from mining companies. Once respect and trust are established, all of the other business considerations and opportunities can be discussed and, most importantly, be decided on jointly.
This is the foundation for equal participation in a resource development. The communities bring a lot to the table in terms of environmental knowledge, land knowledge and consent. And this provides certainty for a mining company that must secure or invest hundreds of millions of dollars into a project. If the community can also leverage hundreds of millions of dollars from quality investors who feel that the investment is certain and will pay a return to shareholders because it will be unencumbered by a delay or a stoppage.
What are Canadian governments doing right and what would you like to see improvement on in terms of how they deal with mining projects on aboriginal lands?
I think the Federal Government, and Natural Resources Canada (NRCan) in particular, has always had an interest in working with aboriginal communities. In the early days of our association NRCan was quite helpful in gathering and sharing information to help us seek out projects that we could highlight in our conferences and in our daily work. Even today, they play a key role in information gathering, sharing and in helping communities understand projects in their area.
Other government departments play a role in terms of financing business development or training programs in communities. But I really admire the role of Natural Resources Canada, especially since the Canadian Minerals and Metals Plan (CMMP) clearly has a chapter focused on getting more aboriginal communities and mining companies working together in the best possible way.
In terms of what can be improved, the issues that aboriginal groups have always had with the government are challenges related to land rights and land access. This is such an important issue that the legal system is currently inundated with over 1,000 litigation proceedings that relate to land access by communities.
“This is such an important issue that the legal system is currently inundated with over 1,000 litigation proceedings that relate to land access by communities.”
Put simply, we have a government that advocates for mining and resource companies to work with communities, to provide access to opportunities for communities both off reserve and in their traditional territories, but yet the government also tries to hinder access through litigation. So the current state of affairs is a frustrating catch 22. It is not only frustrating for aboriginal groups but also for the mining sector that gets caught in the tug of war between aboriginal groups and the government fighting over title, access and land use near mining projects. I think we will continue to see this struggle as long as the government continues to litigate and complicate the process for aboriginal communities and the mining industry.
We often hear the term ‘reconciliation’ but when we see the staggering amount of litigation that is still occurring around mining projects, we wonder if the government is truly devoted to reconciling the past with aboriginal communities.
In our case, we try to be pragmatic and aim to accomplish a win-win for aboriginal communities and the mining industry. So we insist that the communities and mining companies work together to come to an agreement on use, access and, in some cases, the occupation of land, regardless of the government’s decisions.
The biggest challenge for the future of aboriginal communities’ relationship with the mining industry is that of land title. To resolves this, I would call on Canadian sovereign Queen Elizabeth II to settle land claims and honour treaties inked by the Crown since the 1700s. The settlement of title remains the biggest stumbling block to participation in the mining industry by Canada’s Indigenous peoples.
Part of the Future of Mining Series presented by: