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Long awaited: The Aboriginal Community Consultation Policy Specific to the Mining Sector

Fasken
Reading Time 7 minute read
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Indigenous Law

On October 22, 2019, the Minister of Energy and Natural Resources (the “Minister”) published its Aboriginal Community Consultation Policy Specific to the Mining Sector[1] (the “Policy”) which sets out general and specific guidelines for the purposes of the Aboriginal communities consultation process, in order to foster and maintain better relationships with such communities.  The Policy thus supplements to a certain extent the orientations relating to the consultation process that applies to mining projects, whether or not such projects are subject to the environmental impact assessment and review procedure provided for under Chapter I of the Environment Quality Act (the “EIARP”), as well as to mineral exploration projects.

Background 

Aboriginal rights and treaty rights are recognized by the Constitution Act, 1982. [2] Such recognition entails a governmental obligation to consult and, if need be, to accommodate Aboriginal communities when their rights may be affected. Although such obligation is a Crown’s obligation[3], the Crown may delegate some of the consultation’s procedural aspects to third parties. [4]

This is the reason why some mining project proponents take part in the Aboriginal peoples consultation process in order to contribute to its proper conduct. The Policy therefore helps clarify the role mining proponents during the consultation process and, to a larger extent, the social acceptability process of mining projects.

The development of the Policy derives from an obligation of the Minister under the Mining Act. [5]  This Policy’s goal is to fill the gaps in the Interim Guide for Consulting the Aboriginal Communities (the “Interim Guide”) that have emerged in part because of developments in Aboriginal law jurisprudence. The Interim Guide proposed various guiding principles to the government when certain activities could potentially affect the rights claimed by Aboriginal peoples that had yet to be recognized or established. It is in this context that the Policy is being put forward.

We expect the Policy will have a greater and more useful impact in areas where the rights claimed by Aboriginal communities are not yet recognized, defined or established by the courts or under a treaty. In fact, when a law or a treaty already provides for a comprehensive consultation process, the Policy will be of lesser interest since the framework of the consultation process is generally provided in such law or treaty. This is true, for example, for projects located on the territory covered by the Agreement concerning James Bay and Northern Québec, which provides an environmental and social impact assessment and review procedure that requires consultation with, and engagement of, the Cree people. The same applies in cases where Aboriginal communities are in the process of negotiating with governments with respect to the execution of a treaty or have concluded an agreement establishing a consultation protocol.

Policy Guidelines 

The Policy makes recommendations with respect to the relationships mining proponents maintain with Aboriginal communities throughout the development of a mining project. Proponents are thus invited to interact with Aboriginal communities as soon as claims, permits, authorizations or other mining rights are granted. The goal of these Aboriginal communities consultation procedures is to encourage the establishment of relationships based on co-operation, transparency and information sharing.

In his Policy, the Minister proposes general guidelines that apply to all stages of a mining project. These guidelines may be summarized as follows:

In addition to these general guidelines, which apply to all ongoing or planned mining projects, the MERN proposes guidelines specific to exploration and mining activities, summarized as follows:

When projects are likely to have an adverse effect on the Aboriginal communities’ established or claimed Aboriginal or Treaty rights, mining projects proponents not subject to the EIARP must, in addition to these guidelines, carry out a public consultation and inform Aboriginal communities that such consultation is to be held. For mining projects that are subject to the EIARP, the consultation process is harmonized at the EIARP stages.

Proponents, whether or not subject to EIARP, must also set up a monitoring committee composed of at least one representative of an Aboriginal community consulted with respect to the project.

Following the map designation of a claim, proponents are invited to contact the Québec government to be informed of the Aboriginal communities that may be concerned by the land in question. It remains important for a proponent who plans to consult Aboriginal communities to seek legal assistance. Also, the MERN wants to be kept informed, by the mining proponents, of the strategies they use in connection with the Aboriginal communities consultation process. Organizing meetings between the proponents and Aboriginal communities in order to discuss the potential impacts and the opportunities offered to those communities is considered fundamental to the success of a consultation.

The MERN also encourages proponents to sign memoranda of understanding (“MOUs”) with the Aboriginal communities to facilitate their involvement in the process and provide greater predictability of the state of the mining project for proponents. Even though financial compensation mechanisms may be an option in certain cases, they are not mentioned in the Policy. It is worth recalling that these MOUs are contractual agreements between the proponent and one or more Aboriginal communities, to which the Québec government is not a party.

As a matter of fact, in order to address the issues that affect Aboriginal communities as a result of mining activities, many mining proponents (exploration and mining) recommend that their royalties be paid to the Aboriginal communities concerned by a mining project. Although the MERN has confirmed having considered this option, the Policy remains silent on this matter. This can be explained in part by the fact that this solution of an economic nature could not alone be sufficient to guarantee a project’s success.

In conclusion, any form of collaboration between mining proponents and Aboriginal communities cannot be based solely on financial or economic considerations. This is in line with the general objective of the Policy.



 

[1] Ministère de l’Énergie et des Ressources naturelles, Aboriginal Community Consultation Policy – Supplementary Document – Aboriginal Community Consultation Policy Specific to the Mining Sector, 2019

[2] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s. 35.

[3] Nation Haïda v. Colombie-Britannique (Ministre des Forêts), 2004 CSC 73 at par. 35.

[4] Nation Haïda v. Colombie-Britannique (Ministre des Forêts), 2004 CSC 73 at par. 35.

[5] Mining Act, CQLR c. M-13.1, s. 2.3

[6] Provides access to the Public register of real and immovable mining rights.

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