CANADA Law and Practice Contributed by: Darrell Podowski, Brian Dominique, Joel Matson and Christa Alvernaz, Cassels Brock & Blackwell LLP
(eg, game reserves and bird sanctuaries), herit - age 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 administer - ing statutes governing the disposition of miner - als on Crown lands have the discretionary power to designate lands as withdrawn or not open for mining activity. 2.3 Impact of Community Relations on Mining Projects Community relations are a critical part of the approval and ongoing operation of mining pro - jects in Canada and can be an essential require - ment for governmental regulators in the con - sideration 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 developed – can be a key factor in the regulatory approval of a project, including satisfying any Crown duty to consult Indigenous people regarding their con - stitutional and treaty rights. 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 accommodate Indigenous peoples where a government action or decision (such as grant - ing 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 projects, 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 reg - istration stage. While the consultation process is the Crown’s responsibility (both federal and provincial, with - in their respective 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 obliga - tions. 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 tra - ditional lands, their rights and the environment. Where appropriate, the process should address such concerns through accommodation or other mitigation measures. The obligations imposed by the Crown’s duty to consult and accommodate vary according to the particular circumstances, and not every pro - ject requires the same degree of consultation or accommodation. A single Crown decision can affect many separate Indigenous groups with overlapping claims or interests. It is imperative that all relevant Indigenous groups are correctly identified and consulted, that proper consulta - tion 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 overturn - ing of authorisations.
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