TORONTO (miningweekly.com) – Few mining companies developing Canadian projects within First Nation (aboriginal) territory would do so without seeking to build a close working partnership.
Those who disregard or downplay the importance of First Nation consultation will find their projects languishing in a legal quagmire. Stemming from this, there can be a train of negative publicity, while subsequent and inevitable delays then dent potential investor confidence and shareholder opinion.
So why do some mining companies still make elementary mistakes in relation to First Nation communities? How can these be avoided and what are the best methods for fostering a close working relationship? If disputes do arise, what are the best methods to seek a fair and mutually-rewarding resolution?
Norton Rose’s senior advisor Phil Fontaine has a wealth of expertise within the field of advising mining companies how to build bonds with First Nations communities and how to construct strong and lasting partnerships. As a former National Chief of the Assembly of First Nations (a post he held three times), Fontaine has also been instrumental in raising First Nations rights issues across Canada.
“The working environment has changed significantly,” he told Mining Weekly Online. “Even in the recent past there was no requirement to talk with First Nations communities. For example, in Ontario, mining exploration was based on the free entry system, while the province’s mining act dated from the 19th Century. There was simply no need to engage with the First Nations at any level.”
Yet in recent years, particularly over the past decade, mining laws across Canada are being revised to reflect First Nations rights. Unfortunately, there are some companies that still fail to update best practices, Fontaine said.
“One could argue that some companies don’t know the law clearly enough, while many others have failed to appreciate the unique interests of the First Nations community or sought to understand their values, traditions and culture,” he added. “Remember every community has a right to say no and a right to say yes [to a project].”
Companies using methods from the past will flounder and, given today’s climate in Canada, flounder fast. “Given the new understandings and new requirements, including the duty to consult, some might claim these are costs, but they should be considered an investment,” Fontaine stressed.
Success comes through understanding, he said. “Successful mine development depends on understanding the laws and the legal requirements, including the duty to consult with the First Nations. And when we talk about consultation it goes beyond picking up a phone and simply saying: ‘Hello; I’m from mining company X’. Consultation means a true, often long-term, engagement with the First Nation community or communities that may be affected by a project,” he said.
Beyond the initial meeting, Fontaine adds that a company should always ensure personal interaction is maintained throughout a mine’s development process. At every step, a company should also remember that the First Nations communities are the long-term legal custodians of the project’s land; they will still be there long after the mining project is complete.
“Personal interaction is vital; a company should reach out to a community and introduce itself. It should spell out its interests and plans, including a procedural structure for a proposed project. It must share all important project information. It should stress to a chief and council, the elective representatives, that it is interested – indeed committed – to full engagement with a First Nation community. A company should also show it knows about aboriginal land and water rights and that it will respect them,” he said.
“By basing a consultation process on understanding that First Nations have strong legal rights to be heard and their concerns addressed, a company will have a far better chance of success. It’s about being a meeting of equals and, if possible, a meeting of minds on how development will proceed,” he added.
“Consultation will then lead to unique arrangement; either a partnership or situation where a First Nation community or communities are offered equity in a particular project. There are many examples across Canada where this is happening,” he said.
Arguments made that First Nations people oppose all forms of development are erroneous, Fontaine said.
“One shouldn’t simply assume that the First Nations are against development – that they are opposed to mining, hydro development, or pipelines etc. That’s not the case, many of First Nations are pro-development – just not development at all costs. It’s about responsible development and, to achieve that, companies might need to alter the way they had envisioned the project. Consultation might mean changes to the project,” he said.
Should a disagreement occur, then a company should calmly and carefully try to seek a solution. If the disagreement continues, then mediation could be considered.
“If there is a stalemate, and if it appears that progress cannot go beyond a particular point, then mediation might be considered an option. But we know that mediation will only work if both parties agree to mediate,” Fontaine said.
“However, in my view, mining has proceeded in an impressive way. Despite some well-known challenging situations one could point to numerous operations that are successful because there has been a willingness to reach out,” he said.
“Even projects that had to resolve difficult issues have done so by working with the First Nations through partnerships based on healthy, positive and respectful relationships. The industry has done a remarkable job of creating a positive situation in a short period of time,” he added.
Indeed, the mining sector and the First Nations are building a healthy and robust platform on which wider reconciliation can occur, he said. “Much of the talk is now around partnerships, equity, joint ventures and impact benefit agreements,” Fontaine said. “This path to reconciliation is establishing a clear legal and moral standard that speaks to the unique rights and interests of aboriginal people.”
“In the future, we will be in a far healthier situation and I say that knowing the progress already made. We’ve had a number of tremendous positive examples that can and ought to be considered learning experiences on how to do business with and create a respectful relationship with First Nations communities. This is the approach that will undoubtedly breed the kind of success that all interests are seeking,” he added.