Extractive projects on or near Indigenous (home)lands often provoke social conflicts, manifested in different forms and primed by highly unequal relationships between ‘stakeholders’. Although Indigenous peoples have collective rights enshrined in UNDRIP, such as FPIC, that, if fully recognized, would greatly reduce power imbalances, their right to consultation and consent is limited by jurisprudence. This means that the “duty to consult and accommodate” Indigenous peoples in practice becomes an “obligation to negotiate”. Under these circumstances, Indigenous peoples can only attempt to influence details the project parameters as they have been set by the state and the industry. This situation directly contravenes the notion of consent.
Given past and current Canadian colonial policies, Indigenous peoples are among the most economically, socially, and politically marginalized groups in Canada. This makes it difficult –or impossible– for a number of Indigenous communities to successfully defend their rights, especially across the table from multi-billion dollar companies. This is critical because, as the former Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, writes, “[I]ndigenous territories and resources are in many cases targeted for extraction and development by non-[I]ndigenous interests”.

While some Indigenous peoples, like the Cree Nation of Eeyou Istchee in Northern Quebec and Inuit in Nunavut, voluntarily participate in the discussion of extractive project proposals (including impact reviews and negotiation of Impact and Benefit Agreements (IBAs)), there are disagreements across and within Indigenous communities (as has been observed in the example of TransCanada and TransMountain pipelines).

In the case of mining this is further complicated by the free mining principle (also called free entry regime) that underlies most provincial/territorial mining regimes. This principle[ii] first entails the right freely access to lands containing Crown minerals. Secondly, it entitles miners to unilaterally acquire claims (or titles) on a terrain in order to secure mineral rights. Thirdly, the free mining principle ensures the right to a lease and to go into production. For most of the regions wherein a land claim settlement is in place, (subsurface) rights to minerals are accorded to the Crown and Indigenous nations have only surface rights (or, in the case of the Nunavut Land Claim, for example, the scale of the subsurface rights is much smaller than the surface rights). Thus, entry is freely available for prospecting and exploration activities on such lands.

Indigenous land rights thus become vulnerable when a mining company plans to extract resources on or near their (home)land. Moreover, the legal framework not only sustains but reinforces power imbalances among rights holders: it provides clear access rights to mining companies while Indigenous Peoples have the burden of (a) establishing the existence of their territorial rights and (b) demonstrating that the State is infringing upon these rights.

On the other side of the equation, Canada’s recognition of the rights of Indigenous Peoples has been slow and incomplete. Although the Government of Canada fully supports UNDRIP without qualification or concerns (2016), Bill C-262 for the implementation of the UNDRIP) was recently rejected at the senate. Furthermore, many UN groups[iii] have voiced concerns and issued recommendations to the Canadian Government around FPIC and Indigenous rights.

Considerations

It is important to stress that the reliance of governments on extractivism (for example the projected total of royalty payments and taxes paid to the Federal Government from a single project in northern Nunavut will be $5-10 billion over the life of the mine) and the neoliberal economic model that sustains it must be challenged. Templates of Indigenous self-government frequently rely on revenue streams from large-scale and successive extractive projects. Canadian government approaches thus fail to address and protect vulnerable groups, particularly Indigenous Peoples, and in fact may deepen structural problems already present.

Listed below are recommendations for a Canadian extractive policy that favours conflict prevention and resolution, through the respect, protection and fulfilment of Indigenous Peoples’ rights, coherent with the Indigenous peoples’ right to self-determination, as recognized in Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Recommendations

Recognize and respect Indigenous jurisdictions

1. 1. The federal government should work with provinces and territories to abolish free mining regimes. The Canadian Government should engage bilaterally with Indigenous nations to determine their interest in mining activities. If communities decide that they do not want to engage with such activities, the Government should put a moratorium on their lands and declare them as “no-go” zones until the community decides otherwise;
      
      • New land claim agreements should cease extinguishing Aboriginal titles and include a provision for the negotiation of future agreements;
      • Strengthening Indigenous jurisdictions also involves supporting a full-range of socio-economic activities that build and preserve well-being (food, water, shelter, income, etc.).

Set up a legal and policy framework on consultations, impact assessments, and IBAs

1. 1. Consultations. The government of Canada must update its policies to international human rights standards and respect the right to free, prior, and informed consent, especially for “any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources” (UNDRIP, art. 32,2). Consultation processes should not rely on companies: governments should not delegate its duty to consult href=”https://socialsciences.uottawa.ca/news/are-extractive-activities-and-indigenous-peoples-rights-canada-irreconcilable-grite#_edn4″[iv]. According to ILO Convention 169 art. 6a) and UNDRIP art.19, the government should consult Indigenous peoples when drafting laws or administrative policies that could potentially affect them and such consultations must be made in a culturally appropriate manner and through Indigenous representative institutions.
      Impact assessments.
      In accordance with Indigenous sovereignty, the Government should entitle Indigenous nations to conduct or review their own impact assessments (e.g., the Nunavut Impact Review Board (NIRB) or href=”http://www.mineraglan.ca/fr/operations/nos-activites/Documents/Sivumut_%20Fact-Sheet-2016_7_CLEAN_web.pdf” the joint review conducted by the Inuit and Glencore for the Sivumut project). Toward this end, it is critical that Indigenous communities have access to independent (engineering, marine/land biology, social, etc.) research and other resources.
      Impact assessments should include an analysis on gender-specific impacts. This analysis should be informed by the Missing and Murdered Indigenous Women and Girls (MMIWG) Inquiry “Calls for Justice” (2019), particularly Section 13 (Calls for Extractive and Development Industries) in order to ensure safety and security for communities, particularly girls, women, and 2SLGBTQQIA people. These assessments must be informed by a well-documented relationship between resource extraction projects and violence against Indigenous women, girls, and 2SLGBTQQIA people.
      Impact and Benefit Agreements (IBAs). In order to make IBAs a tool that reduces the power imbalance between Indigenous Peoples and extractive corporations, the Canadian Government should 1) promote, facilitate, fund, and provide the means for communities to organize their own deliberative process before signing an IBA; and 2) strengthen conflict resolution mechanisms (with disciplinary powers) in case of disputes and/or failures to fulfill agreements between corporations and Indigenous nations while implementing the IBA.