CANADA Law and Practice Contributed by: Darrell Podowski, Brian Dominique, Joel Matson and Christa Alvernaz, Cassels Brock & Blackwell LLP
actions are consistent with the fiduciary duty it owes to the Indigenous groups, including appro - priate consultation (or attempts to consult) as a precursor to justification of the infringement. Proof that infringement is consistent with the Crown’s fiduciary duties to Indigenous peoples involves a three-part test: • rational connection – the infringement must be necessary to achieve the Crown’s objec - tive; • minimal impairment – the Crown must go no further than necessary to achieve its objec - tive; and • proportionality of impact – the benefits expected to flow from the objective must not be outweighed by the adverse effects on the Aboriginal interest. The Supreme Court of Canada has held that provincial governments, when acting within their jurisdiction, may seek to justify an infringement of Aboriginal rights, including Aboriginal title. The federal government and the Province of Brit - ish Columbia have attempted to adopt the Unit - ed Nations Declaration on the Rights of Indig - enous Peoples (UNDRIP) via statute. However, the Supreme Court of British Columbia recently held that British Columbia’s UNDRIP statute did not implement UNDRIP into British Columbia law, nor create justiciable issues. Federal leg - islation approving the adoption of UNDRIP in 2021 required consultation and co-operation with Indigenous peoples to implement an action plan to achieve the objectives of UNDRIP. Impact Benefits Agreements It has become common, through consultation processes, for proponents of resource projects to enter into impact-benefit, participation or oth - er mutual benefit agreements with Indigenous
peoples. Such agreements are often necessary to ensure that projects proceed with greater cer - tainty while the legitimate concerns of affected Indigenous groups are addressed. Depending upon the nature and strength of the proven or asserted Aboriginal right, benefits negotiated in these agreements can include revenue or income participation, employment opportunities, education and training initiatives, or contracting and business opportunities for affected Indigenous communities, as well as capacity-building initiatives and plans to miti - gate the environmental impacts of the project. Some modern treaties contain terms requiring the negotiation of such agreements as a matter of law. 2.6 Community Development Agreement for Mining Projects It is common, and in many cases expected, that mining projects will enter into some form of agreement with communities in proximity to and affected by such project. In some cases, com - munity benefit and similar agreements are man - dated by law – particularly in northern Canada, relating to modern land claims agreements such as the Nunavut Land Claims Agreement. 2.7 Environmental, Social and Governance (ESG) Guidelines and Regulations ESG factors are used by investors to evaluate the sustainability of investments and corporate practices. There are currently no ESG-specific legislative regimes in Canada for the mining sec - tor. However, there are emerging securities dis - closure regimes, securities exchange commen - tary and industry guidance that relate to ESG factors, any of which may: • carry the force of law;
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