Guidelines for Early Mineral Exploration in Manitoba

Introduction to Consultation and Indigenous Engagement

Overview

In Canada, “Indigenous peoples” is a collective name for the original peoples of North America and their descendants. The. Canadian Constitution recognizes three distinct groups of Indigenous (Aboriginal) peoples: Indians (referred to as First Nations), Métis and Inuit.

Areas with high mineral potential may also be areas in which Indigenous peoples exercise Aboriginal and Treaty rights or carry out traditional activities. Potentially competing interests in resource extraction and traditional land use can be sources of tension among Indigenous communities, government and the mining industry in Manitoba. MAMI recognizes the importance to our industry of government, exploration and mining companies, and Indigenous communities working together to develop strong relationships, establish opportunities for communication and transparency and carry out truly effective, voluntary Proponent engagement and Crown consultation processes.

It is important to emphasize that the principal goal of engagement is always for proponents to learn what, if anything, needs to be changed in their project plan while showing respect for the exercise of Aboriginal and treaty rights while operating in a community’s traditional territory.

We recognize that Proponent engagement with Indigenous communities potentially affected by exploration and mining activity can result in the development of information that is valuable to the Crown in carrying out its statutory and Constitutional duties of consultation.

We recognize that engagement can lead to relationships with communities that both contribute to economic development in communities and improve the economic outlook of mineral companies through the establishment of local business connections and the development of locally based workforces.

We recognize that Aboriginal and treaty rights have been the subject of numerous legal actions in recent years, often in relation to mineral resource activities. Many of these actions have resulted in new legal precedents that have helped clarify the practical implications of these rights as they apply to mineral resource projects and we expect further actions will continue to provide additional clarity over time. The intent of this document is to find a platform upon which mineral resource projects can move forward for mutual benefit in a manner consistent with the principles arising out of the case law.

Such engagement processes between proponents and First Nations and Métis, however, do not displace or substitute for the Crown’s constitutional obligations in relation to the proposed actions or decisions which have the potential to impact Aboriginal and Treat rights.

United Nations Declaration on The Rights of Indigenous Peoples

(Courtesy AME BC, Aboriginal Engagement Guidebook)

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the United Nations General Assembly on September 13, 2007. UNDRIP is a non-legally binding document that describes both individual and collective rights of Indigenous peoples around the world. It addresses issues such as culture, identity, language, health and education, and provides guidance to the signatories of UNDRIP, the United Nations, and other international organizations on harmonious, cooperative relationships with Indigenous peoples.

Free, Prior and Informed Consent (FPIC) is an aspirational principle contained within UNDRIP that would require states to obtain the consent of Indigenous peoples before making decisions that impact them within their traditional territories. FPIC does not supersede Canadian law with respect to the Crown’s responsibility to function as the decision maker in regulating industries or the Crown’s duty to consult and accommodate infringements on asserted or proven Aboriginal rights and title or treaty rights.

On November 12, 2010, Canada issued an endorsement of support for UNDRIP as an “aspirational” set of principles that does not supersede the domestic laws of the country. Canada supports the principles set out in UNDRIP (namely, equality, partnership, good faith and mutual respect) and takes the position that these principles are consistent with its established approach to working with Indigenous peoples.

In March 2016, the Manitoba government passed the Path to Reconciliation Act, with unanimous support of the Manitoba legislature. The act sets out the government’s commitment to advancing reconciliation, guided by the Calls to Action of the Truth and Reconciliation Commission of Canada and the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

UNDRIP does not supersede Canadian law with respect to the Crown’s responsibility to function as the decision maker in regulating industries or the Crown’s duty to consult and accommodate infringements on asserted or proven Aboriginal rights and title or treaty rights. Neither does it create a veto right on the part of Indigenous peoples or impose a legal obligation on the part of either the government or explorers to obtain the consent of an Indigenous community for activities undertaken on Crown lands. Nonetheless, Indigenous communities may have a different perspective on UNDRIP and FPIC and explorers should be aware of their significance.

Consultation and Engagement

It is important to understand that consultation and engagement are not the same. Consultation refers specifically to activities undertaken by the Crown in relation to its Duty to Consult, a legal obligation created by section 35 of the Constitution Act 1982. Engagement is a series of desirable and recommended activities that companies may undertake that can support the Crown’s Duty to Consult. Engagement activities and information gathered through this process, may inform the consultation process. In short, governments consult and companies engage.

Consultation by the Crown

Both the Crown in right of Manitoba and Crown in right of Canada have duties to consult with rights-bearing communities before making decisions that could adversely affect the exercise of Aboriginal or treaty rights. While the federal government makes decisions in relation to protection of fisheries, navigation, migratory birds and the use of Indian Reserve land, Manitoba makes decisions regarding the use of all renewable and non-renewable resources on Crown Land in the Province. The use of Crown Land, the granting of rights to mineral resources on Crown Land and environmental regulation of the mineral industry, whether on private or Crown Land, under provincial jurisdiction.

The Manitoba government acknowledges its responsibility to consult in a meaningful way with Indigenous peoples before making a decision that might adversely affect the exercise of Treaty or Aboriginal rights and, where appropriate, to develop meaningful ways to accommodate the concerns of Indigenous communities about any potential adverse impacts on the exercise of their rights. Manitoba Mineral Resources has developed draft procedures related to consultation efforts for both mineral exploration and mine development.

The Crown also may expect a Proponent to support its consultation efforts by participating in community meetings, providing information (such as is described below) and responding to the community’s questions. An invitation from the Crown to the Proponent to participate in Crown consultation should be accepted and regarded as an opportunity to explain its project in an accurate, timely and useful manner and to help the Crown design, in a useful and constructive manner, any “accommodation” measures which may be required (for example, respecting the seasonal fluctuations in the activities of game in the region).

Engagement by the Project Proponent

Proponent engagement with Indigenous communities is encouraged before applications are made that may trigger the Crown’s duty to consult. Proponents are encouraged to initiate engagement prior to undertaking any exploration or mining activities which have the potential to affect how Indigenous peoples use their traditional lands and resources. Proponents may learn about traplines in the area, important cultural sites or gathering places not easily identified on maps. The information obtained through engagement helps the Proponent plan its proposed project in a way which avoids adverse effects on Indigenous peoples use the land and how the Crown determines impact to Aboriginal and treaty rights. Well documented engagement processes can be included in applications for permits and approvals and used by the Crown to inform its consultation process.

Benefits of early engagement:

  • Activities that proponents carry out during engagement (e.g. come to agreements with communities, make design changes, etc.) may be considered accommodation measures by the Crown and can be helpful for a more efficient consultation process.
  • The more information the Proponent can gather while engaging with communities up-front, the more information the Crown has to assess potential impacts of the project and what has already been addressed.
  • Given the mining life cycle, the Proponent may be required to engage with different community Chiefs due to elections. Ongoing engagement is helpful for projects in these cases.

Manitoba regulatory authorities appreciate receiving well-documented engagement records. Early engagement by the Proponent helps facilitate a more efficient and timely Crown consultation process by identifying and addressing community concerns before regulatory applications are made. Avoidance and mitigation measures developed by the Proponent can be incorporated into permits and approvals and may be used by the Crown to fulfil some aspects of its duty to accommodate First Nations and Métis peoples whose Aboriginal or treaty rights may be affected by the proposed activity.

Engagement may have three very different but complementary goals:

  • Achieving understandings with an Indigenous community about proposed exploration or mining activities through a respectful process of engagement consistent, wherever possible, with the community’s traditional laws, protocols and stewardship responsibilities;
  • Sharing and obtaining the information needed to plan the proposed project in a way which respects Indigenous interests and thus also producing a record relevant to Crown consultation; and
  • Involving the Indigenous community in business and employment opportunities that may flow from the project.

Many Indigenous communities in Manitoba have expressed interest in building lasting relationships with the mining industry. Early engagement can help establish working relationships that can last through the mining life cycle, from early exploration to mine closure.

Project planning should include providing for sufficient funding and time in the schedule for meaningful engagement to occur. Funding for exploration should include the costs of supporting engagement, including expenses related to producing material to display the proposed project and potentially also expenses related to compensating elders, resource users and traditional knowledge holders for sharing their knowledge and expertise as appropriate.

Early engagement helps proponents establish reasonable and realizable expectations for Indigenous participation in their projects. Over time, proponents can also build a reputation for sharing useful information, showing respect for traditional knowledge and avoiding adverse impact on Indigenous use of resources.

The following sections outline a practical approach for deciding what type of engagement and how much engagement is appropriate for the stages of early exploration, longer-term or more intensive exploration, and mining and closure.

Consultation and Reconciliation Unit

The Consultation and Reconciliation Unit within the Manitoba provincial government in Economic Development, Investment, Trade and Natural Resources Department lead Crown Indigenous consultation and shared management of Manitoba’s natural resources.