Aboriginal Consultation

Under the Canadian Constitution, (Constitution Act, 1982) Aboriginaland treaty rights are given special protection. This means that these rights cannot be unjustifiably interfered with - the actions of prospectors and developers can be part of this consideration - and that meaningful consultation occur where these rights may be adversely impacted by contemplated conduct.   Ontario’s New Approach to Aboriginal Affairs Spring 2005 contains important statements on consultation related to constitutionally protected rights.

Developing a relationship with Aboriginal communities during the early stages of the mineral development sequence is important and will prove helpful particularly if the project proceeds to more advanced stages.

At these advanced stages Part VII of the Mining Act for Advanced Exploration and New Mining Projects sets out specified consultation requirements. When submitting Closure Plans, the proponent must certify that they have carried out reasonable and good faith consultation with the appropriate representatives of all Aboriginal peoples affected by the project.

Other permits, such as work permits, may also trigger consultation requirements. If a project triggers an environmental assessment process, Aboriginal consultation will be required if the project will be of potential interest to Aboriginal communities.

The following checklist may provide some guidance for a company interested in developing a relationship with an Aboriginal community. It is useful for all stages in the mining sequence: staking and exploration through mine development, mine operations as well as mine closure. This checklist was adapted from the Sub-committee of the intergovernmental working group on the mineral industry publication: Aboriginal Communities/Mineral Companies/Governments Working Together: A Checklist to Assist Mineral Companies Active in Areas Near Aboriginal Communities (PDF, 31kB).

Reasons to Contact the Community

• Legal and/or land claim issues
• Common courtesy (e.g., your company wishes to explore or develop a site on or near the traditional land of an Aboriginal community)
• It is a good business practice
• To inform local Aboriginal people of your company's plans
• To learn of their concerns about the project and consider how to mitigate them
• To ensure their understanding of the project
• To learn about the availability of local labour, businesses and services
• To learn about the need for and availability of training programs
• To determine if there are any conflicts or potential conflicts with Aboriginal and treaty rights (i.e., wildlife harvesting)
• Confirm your understanding of area issues
  

Information to Collect Before Initial Contact

• Learn the regulatory requirements that might affect your dealings with Aboriginal communities
• Confirm land ownership in the area
• Status and nature of land claims: pending or settled (effect, if any, of settled land claim on what your company is planning to do)
• Determine if there is some type of agreement and/or protocol in force in the area which may affect your project
• Availability of government programs to encourage Aboriginal participation in your project
• Location of withdrawn areas (e.g., protected areas, parks, etc.)
• Name and location of all potentially affected Aboriginal communities or groups
• Location of nearby reserves, populated or unpopulated
• Location of lands, or bodies of water, which the peoples traditionally use
• Who to contact (e.g., name of the band chief, economic development officer, etc.)
• Location of areas of cultural significance (e.g., burial grounds, other heritage sites)

Who to Contact

• If possible, do all community consultation in person
• Given that the area of traditional use may be extensive, you may have to meet with people from a number of affected Aboriginal communities
• Initial contact should be made with all or any of the following:

-Band Chief, Band and/or Tribal Councils, etc.
-Local economic development or employment officer or development corporation

• Contact should also be made with the general public:

-Public information sessions
-Community meetings, or question and answer sessions
-Local organizations

• Use local media, including the Aboriginal press (if available), to inform the community(ies) about what the company is doing or planning to do
• The use of oral and written translations services is advised in many communities
  

What to Inform the Local People About

• What the company is planning to do and how it will do it (e.g., stake, exploration, develop a deposit, purchase company, etc.)
• Notification of pending work
• Actual or approximate location of planned operation
• If known, discuss the proposed type of operation:

-Mineral(s) being looked for or developed
-Type of mine (e.g., open-pit or underground)
-Type of accommodation (e.g., campsite or fly-in/fly-out)
-Size of labour force, education and skills required
-Location of hiring office
-Planned crew rotations or shift schedules
-Planned cross-cultural programs
-Impact and Benefit Agreement if applicable

• If you plan a pro-active Aboriginal hiring program, seek guidance from the community about a possible Native employment coordinator
• If a formal Impact and Benefit Agreement is not contemplated, think about the advisability of entering into some other form of understanding with the community to establish a track record and set principals and expectations
• Potential environmental problems or concerns and proposed mitigation measures (raise these on your own)
• Environmental approvals being sought, if applicable
  

What to Learn From the Local Aboriginal People

• The availability and make-up of the local labour force (e.g., education, training, skill levels, etc.)
• The availability and nature of local businesses (e.g., potential sources of construction materials, services contracts, joint ventures, etc.)
• Would they like you to enter into an agreement?
• Their concerns about possible social impacts
• Their concerns about possible environmental impacts
• Traditional knowledge and other local knowledge
• Impacts to their treaty and aboriginal rights
  

Maintain the Relationship over the Life of the Project

• To ensure that the good relationship developed at the beginning continues
• Maintain contacts and relationship over the life of the operation
• In the event of a change of ownership, it is important that the lines of communication remain open

Aboriginal Consultation guidelines for other Canadian Jurisdictions or Organizations

Manitoba’s Industry, Economic Development and Mines - Manitoba Minerals Guideline "Building Relationships and Creating Opportunities: Guiding principles for Success"