CANADA Law and Practice Contributed by: Darrell Podowski, Jennifer Poirier, Joel Matson and Simi Fagbongbe, Cassels Brock & Blackwell LLP
mining projects frequently intersect with the statu - tory and constitutional rights of Indigenous people. As such, the participation of Indigenous groups in the regulatory review process is fairly standard, and affected groups are given an opportunity to make sub - missions to statutory decision-makers in such cases. 2.2 Impact of Environmentally Protected Areas on Mining Cultivated lands, park lands, railway lands, public roadways, environmentally sensitive lands (eg, game reserves and bird sanctuaries), heritage lands, airport lands, town sites and other such developed areas are typically not open for mining activity, nor are lands for which a claim, mining exploration licence, mining concession or mining lease has already been granted. Government officials responsible for administering statutes governing the disposition of minerals on Crown lands have the discretionary power to desig - nate lands as withdrawn or not open for mining activ - ity. 2.3 Impact of Community Relations on Mining Projects Community relations are a critical part of the approval and ongoing operation of mining projects in Canada and can be an essential requirement for governmental regulators in the consideration and approval of such projects. For Indigenous communities that may be affected by a mining project, proactive community relations – both before and after a project is devel - oped – can be a key factor in the regulatory approval of a project. 2.4 Prior and Informed Consultation on Mining Projects Under Section 35 of the Constitution Act, 1982, the Crown has a duty to “uphold the Honour of the Crown” to consult and, where appropriate, to accom - modate Indigenous peoples where a government action or decision (such as granting an authorisation) may potentially adversely impact their established or asserted Aboriginal or treaty rights. Accommodation can take the form of project conditions to minimise or avoid potential adverse effects on the rights of Indig - enous peoples. Most natural resource-related pro -
jects, including mining projects, will trigger the duty to consult. British Columbia and Yukon court decisions indicate that consultation may be required as early as at the mineral claims registration stage. In response, British Columbia developed the Mineral Claims Consultation Framework, which provides for Crown consultation with Indigenous peoples as part of the mineral claim application process. Yukon is developing a similar framework, which has not yet been introduced. While the consultation process is the Crown’s respon - sibility (both federal and provincial, within their respec - tive jurisdictions), the Crown can delegate some or all of the procedural aspects of consultation to project proponents. In such cases, proponents must work closely with the Crown to carry out their consultation obligations. The objective of the consultation process is to provide a fair and transparent forum for the issues and concerns of Indigenous peoples to be heard and considered in light of the proposed project’s potential or actual impacts on their traditional lands, their rights and the environment. Where appropriate, the process should address such concerns through accommoda - tion or other mitigation measures. The obligations imposed by the Crown’s duty to con - sult and accommodate vary according to the particu - lar circumstances, and not every project requires the same degree of consultation or accommodation. A single Crown decision can affect many separate Indig - enous groups with overlapping claims or interests. It is imperative that all relevant Indigenous groups are correctly identified and consulted, that proper consul - tation and accommodation records are kept, and that consultation with the affected Indigenous community is meaningful. Failure to follow these steps can result in: • delays or challenges to grants of licences, permits and approvals; • community protests; • investor relations problems; and • litigation seeking injunctions or the overturning of authorisations.
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