TORONTO (miningweekly.com) – On August 26, a Canadian federal court rejected arguments made by the Hupacasath First Nation that the federal government had a duty to consult the band before approving the Canada-China foreign investment promotion and protection agreement (CCFIPPA).
Located in central Vancouver Island, the Hupacasath maintained the duty was triggered by the agreement’s potentially negative impact on its community, lands and traditions.
It also contended that, under the agreement, any resource dispute between the First Nations and Chinese investors will be resolved through international trade and investment laws to the preclusion of Canada’s constitutional protections afforded to the band.
Considering previous case law, with particular focus on 2010’s Rio Tinto Alcan v Carrier Sekani Tribal Council, Chief Justice Paul Crampton ruled that the Hupacasath’s arguments were non-appreciable and speculative; the duty to consult had not been triggered.
For many, this might appear to be a strange storm in a Canada-shaped teacup. But the implications are important and illustrate the greater scope and scale of First Nation challenges aiming to protect aboriginal rights, particularly in relation to natural resources.
SEE YOU IN COURT
Talking to Mining Weekly Online the chairperson of Norton Rose Fulbright’s aboriginal law team Pierre-Christian Labeau explained the importance of the Hupacasath’s case and its possible ramifications.
“It’s the first time I’ve seen a First Nation or any other aboriginal group go up against the ratification of such an agreement,” he said. “But today the First Nations will insist on being consulted on any matter they believe impairs or affects their aboriginal rights.”
“If consultation is not forthcoming, they will not hesitate to go to court. They know the judiciary is favourable towards the First Nations when it comes to ensuring their rights are taken seriously,” he added.
“In this specific case, the central question was whether the CCFIPA had triggered a duty to consult [but] the Hupacasath were unsuccessful in making a direct connection between the agreement’s ratification and their arguments surrounding its potentially negative impact on their rights,” he said.
The First Nations are likely to revisit these waters, Labeau argued. “Eventually, I am quite sure that a treaty or international agreement will be deemed to have triggered the government’s duty to consult,” he said.
“But to achieve this, the First Nations must establish direct and tangible connections between an international treaty’s provisions and the negative effects on aboriginal rights, and they must convince the court accordingly,” he explained.
Labeau then contemplated the possible outcome of such a scenario if the specific conditions were considered to have been met.
“The court might then tell the government to consult the First Nation in question and return with the results,” he said. “After this, the court might find the arguments made during the consultation to be sound and order the government to insert or redraft new provisions within the treaty, ensuring aboriginal rights are protected.”
CONSULT AND CONSENT
Labeau said other developments, particularly in relation to the First Nations’ environmental expectations and notions of territorial integrity will be significant issues for mining and exploration companies over the coming years.
“Now you might argue: ‘well exploration doesn’t really have a major impact on land, the environment or fauna because the work is so specific and quite constrained in nature’. Well it’s important to realise that the First Nations will judge this work alongside other ongoing development and then weigh up the collective impact,” he said.
This is a critical reason why companies need to engage in early and frequent consultation. Companies should also be aware that the need to consult evolves with each stage of project development or operation.
“Let’s say a mining project progresses and starts showing strong potential; that’s when the First Nations will argue a company must also consider and consult on the full impact of a project’s development on the territory, community and aboriginal rights across the short-, medium- and long-term,” he added.
Labeau also predicted a time when aboriginal groups might win veto rights in relation to project development.
“The duty to consult does not mean the First Nations have a right to project veto, whether it is a mine, pipeline or hydroelectric plant etcetera. However, I’m fairly certain that there’ll be a situation when a court will say, with regard to specific circumstances, that it believes a First Nation has the right to ask for the rejection of a project,” he said.
“But again, a First Nation must prove that the project in question will negatively affect their land, other development work or any fauna on which the aboriginal community relies,” he added.
Another important factor sometimes overlooked by mining companies is the development of other projects within an aboriginal territory and the collective influence that these have on a First Nation’s outlook.
“I negotiate a great deal with First Nation communities. Often they will accept maybe two or three projects but they might say no to a fourth, arguing that the next project along is simply too big or imposes too much upon their traditional activities,” he added.
“In such a situation it might be difficult for any mining proponent to decide what to do next, especially if the matter is taken to tribunal and it is then decided that the only possible accommodation is to stop the development. This would mean the end of the project,” he warned.
In tandem with consultation, another method to avoid disagreement is to mitigate a project’s impact and offset this by introducing benefits such as jobs, training or impact benefit agreements (IBA).
“Mining companies or other mining proponents should engage with the First Nations. Many already try to negotiate benefits and agreements, such as IBAs, and that’s one of the best ways to proceed and secure First Nation support,” Labeau said.