B.C.'s UNDRIP law a big step, but not necessarily a big change for mining
Credit to Author: Derrick Penner| Date: Wed, 22 Jan 2020 02:09:41 +0000
B.C.’s new law on living up to the UN Declaration on the Rights of Indigenous Peoples is a big development, but it shouldn’t change much about how mining exploration happens in the province.
The legislation writes into law the requirement that government seek informed, prior consent of First Nations on resource development, but “I bet you recognize in industry, you’ve been doing this for a long time,” a senior civil servant, Doug Caul, told the Association for Mineral Exploration Roundup conference in Vancouver.
Caul, deputy minister of Indigenous relations and reconciliation, said resource developers have already been following the guidance set by court decisions on respecting Aboriginal rights and title and putting in the upfront work to build relationships with Indigenous communities.
Caul said many Indigenous communities have been working hard to determine their own mechanisms for dealing with questions of consent before signing agreements.
Still, the industry has a lot of questions about how the new law is going to be brought into force, said Kendra Johnston, CEO of the Association for Mineral Exploration.
It calls for all provincial legislation to align with the principles of the UN declaration, including the Environmental Assessment Act and Mineral Tenure Act, which was of most concern to the association’s convention, which ends Thursday.
“I think we’re all going to be really, really proud of (the law) down the road,” Johnston said. “Right now, there is a lot of uncertainty about how it’s going to be implemented and what it’s going to mean for industry.”
Caul, at Tuesday’s session, pleaded for patience on expectations for how quickly legislation will be brought in line with the declaration, something he characterized as “generational work.”
“You can’t flip a switch and suddenly try to bring (laws) into harmony,” Caul said. Government and the First Nations Leadership Council, a tripartite effort of the First Nations Summit, Union of B.C. Indian Chiefs and Assembly of First Nations, are putting together a plan aimed at bringing that process along.
However, where mineral exploration work is concerned, the vast majority of companies have already clued in to the need for building relationships with Indigenous communities before they start, said Sharon Singh, a lawyer in resource law with Bennett Jones.
“We don’t do ground-disturbing activities by just showing up and doing the work,” Singh said during the panel discussion. “We actually go forward and do the consultation that is required, the best practices we have in place.”
However, Singh said the difficult questions arise when companies give notice that they are interested in pre-disturbance work, such as examining airborne magnetic surveys and run into conditions set by First Nations that aren’t necessarily in the spirit of the UN Declaration.
That would include demands for payment before a First Nation will enter into discussions, which an early-stage exploration company might not be in the position to pay.
“That’s were some frustrations are,” Singh said, and where government needs to provide some leadership.
However, there also needs to be recognition that not all First Nations have the same capacity to consult consultations on resource development, said Celeste Haldane, Chief Commissioner of the B.C. Treaty Commission.
“It costs money for Indigenous communities to actually process and engage” in consultation, Haldane said. “That is part of capacity building. … There are going to be some (First Nations) that require that catch-up period.”
Haldane said that First Nations also have work to do themselves in deciding on processes that determine what is consent for development.
Caul said that neither the legislation, or the UN declaration itself, contemplates consent amounting to a veto over particular projects.