$ +10taxes

MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK the Association for Mineral Exploration would like to thank our generous sponsors

guidebook Mineral Exploration, Mining and Aboriginal Community Engagement By Dan Jepsen, Bob Joseph, Bill McIntosh, Bruce McKnight

Presented by:

In association with:

Association for Mineral Exploration British Columbia (AME BC) Suite 800 - 889 West Pender Street | Vancouver, BC V6C 3B2 Phone: 604-689-5271 Fax: 604-681-2363 www.amebc.ca Email: [email protected] Cover: Top photo courtesy of Kirstie Simpson, Natural Resources Bottom photo courtesy of Jamel Joseph, Natural Resources Canada guidebook Mineral Exploration, Mining and Aboriginal Community Engagement

Presented by: In association with: AUTHORS

Dan Jepsen, President & CEO, Association for Mineral Exploration British Columbia (AME BC)

Bob Joseph, Principal, Indigenous Corporate Training

See acknowledgements and the back cover for listing of our generous funding sponsors. Bill McIntosh, Principal, Clean Communication

Bruce McKnight, Minerals Advisor MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

ACKNOWLEDGEMENTS FOUNDING PARTNERS: Association for Mineral Exploration British Columbia (AME BC) MINERAL EXPLORATION, MINING The founding partners of “Mineral Canadian Business for Social AND ABORIGINAL COMMUNITY Exploration, Mining and Aboriginal Responsibility (CBSR) ENGAGEMENT: A GUIDEBOOK Community Engagement (MEM-ACE): A Guidebook” are pleased to present Copyright ©2005, by SPONSORS: this work as a contribution to the BC & Yukon Chamber of Mines Alcan Inc. (now AME BC) development of mutually beneficial Almaden Minerals Ltd. relationships between Aboriginal Readers may reproduce any part of this Ashton Mining of Canada Inc. communities and the mineral explo- document for non-commercial use with Barrick Gold Corporation ration, mining, and resource sectors. complete reference and crediting to the BC Hydro Association for Mineral Exploration Blake, Cassels & Graydon LLP British Columbia (AME BC). We are also pleased to acknowledge the Bull Housser & Tupper First Edition, 2005 financial support of the Guidebook’s Cameco Corporation Second Printing, 2006 sponsors. DeBeers Canada Inc. All names and logos are (registered) Eagle Mapping Ltd. trademarks of their respective holders. Finning (Canada) All rights reserved. Fraser Milner Casgrain LLP Graymont Western Canada Inc. Please forward inquiries to: AME BC Government of British Columbia Suite 800 - 889 West Pender Street Hard Creek Nickel Corporation Vancouver, BC V6C 3B2 Indian and Northern Affairs Canada Phone: 604-689-5271 Kennecott Canada Exploration Inc. Fax: 604-681-2363 Email: [email protected] Klohn Crippen Berger www.amebc.ca Natural Resources Canada Northern Trailer Ltd. ISBN: 0-9738395-0-3 NovaGold Resources Inc.

Library and Archives Canada Cataloguing in Pacifica Resources Ltd. Publication Placer Dome Inc. Plutonic Power Corporation Inc. Mineral exploration, mining and Aboriginal com- Polaris Minerals Corporation munity engagement: guidebook/by Dan Jepsen...[et al.]. Prospectors and Developers Association of Canada ISBN: 0-9738395-2-X Redfern Resources Ltd. Rimfire Minerals Corporation 1. Mineral industries--Canada, Northern.--Citizen participation. Royal Bank of Canada 2. Indians of North America--Canada, Northern. I. StrataGold Corporation Jepsen, Dan II. Association for Mineral Explaration Syncrude Canada Ltd. British Columbia Talisman Energy Inc.

E98.I5M56 2006 338.2’089’9719 C2005-907797-2 Teck Cominco Ltd. Western Economic Diversification Printed on 100% Post Consumer Waste Recycled Paper Canada Western Keltic Mines Inc. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

PREAMBLE

Finally, we proudly recognize the many Marlene Mathison, More than two years in the making, hours of effort, energy and commit- Association for Mineral Exploration the Working Draft of the MEM-ACE ment dedicated to this project by the British Columbia (AME BC) Guidebook was first released in January, following individuals through AME Dean McDonald, 2005 at “MINERAL EXPLORATION BC’s and Community Committee Bay Resources Ltd. ROUNDUP 2005”, the world’s second Relations Committee. largest mineral exploration conference. Bruce McKnight, Minerals Advisor Hosted by the BC & Yukon Chamber of Without the support of these Harlan Meade, Yukon Zinc Corporation Mines (now AME BC) in Vancouver, B.C. organizations and individuals, the Roundup 2005 was attended by over production of the MEM-ACE Guidebook John Murray, 5,000 delegates from 29 countries. Murray Geological Services would not have been possible: In February, 2005, the Working Draft Jamie Pardy, was presented at the Aboriginal The MEM-ACE Guidebook is divided Brian Abraham, Ministry of Energy, Mines Engagement and Sustainability into two parts – “PART I: ABORIGINAL Fraser Milner Casgrain LLP and Petroleum Resources Conference, hosted in Vancouver by HISTORY AND BACKGROUND”; and CBSR, and drawing presenters from as “PART II: MINERAL EXPLORATION, Don Bragg, Prospector Robert Quartermain, Silver Standard Resources Inc. far away as New Zealand. MINING & ABORIGINAL COMMUNITY Bob Carmichael, ENGAGEMENT – Case Studies, Pointers, EuroZinc Mining Corporation Leilah Tate, Independent Consultant More than 700 copies of the Working Practical Advice and Best Practices.” Draft have been distributed, and input Mike Casselman, Randall Yip, Chartered Accountant Designed and published as a com- Candente Resource Corporation has been gathered from a broad range panion piece to this Guidebook is of Aboriginal, industry and government “BUILDING SUSTAINABLE RELATION- Sue Craig, NovaGold Resources Inc. sources. That input has been carefully SHIPS: 11 Case Studies and 4 Presentations Mike Farnsworth, reviewed and represents a significant Delivered at The Aboriginal Engage- D.J.M. Farnsworth & Associates contribution to the current version of ment & Sustainability Conference” the MEM-ACE Guidebook. We are (the AES Case Studies). Shari Gardiner, Hunter Dickinson Inc. proud to present this work as the Michael Gray, expression of considerable collaborative As the MEM-ACE Guidebook was born Pacific International Securities effort; we hope that it is received and of British Columbia experience, it used as a living document, to be contains considerable material Dan Jepsen, enriched in future editions by broad grounded in that context. We trust Association for Mineral Exploration British Columbia (AME BC) discussion and feedback. that readers in other jurisdictions will recognize that many of the principles Dave Lefebure, developed from that experience are Ministry of Energy, Mines transferable, and we look forward to and Petroleum Resources receiving feedback to help us to expand Egil Livgard, Retired the perspective of future editions. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK table of contents

GLOSSARY OF TERMS i

PART I: ABORIGINAL HISTORY Mining’s Aboriginal Engagement AND BACKGROUND Progress: Introduction 1 AME BC – Ten Principles for Sustainable Pre-Contact History 1 Relationships Between the Mineral Contact History 3 Sector and First Nations 51 Post-Contact History 4 Constitutional History Overview 11 Progressive, Profitable Partnership: BNA Act 11 Three Case Studies 11 Introduction 53 Assimilation Policy 11 Case Study 1: Vancouver Women’s Status 12 Island’s Eagle Rock Quarry Potlatch Law 12 Project: A Modern Industry- Residential Schools 12 First Nations Mining Land Claims and Partnership 54 Aboriginal Protests 14 Case Study 2: Building Trust and Other Legislation 15 Value Over the Long Haul 59 Push for Indian Act Reform Case Study 3: Alaska’s Red and Greater Aboriginal Control 15 Dog Mine: Co-operative The White Paper of 1969 15 Development 61 Canada’s Constitution Act 16 Major Court Cases 17 Pointers, Practical Advice & Aboriginal Population 33 Corporate Best Practices 65 Aboriginal People Yesterday Introduction – Minerals and Today 35 Exploration: Mining’s ‘First The Treaty-Making Process in Impression’ 65 British Columbia 38 Aboriginal Engagement Partnership – Shared Resources Context: Business and Legal and Success 46 Case 66 Resource Expo 2004 46 Pointers 67 Practical Advice 75 PART II: MINING & ABORIGINAL Corporate Best Practices 77 COMMUNITY ENGAGEMENT: Case Studies, Pointers, Practical Advice Useful First Nations & Mining Contact and Best Practices 49 Information 82 Introduction 49 Mining’s Economic Impacts 49 Mining’s Aboriginal Engagement Progress: The Whitehorse Mining Initiative (WMI) 50 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

“… the existing aboriginal and treaty Band The Indian Act defines “band”, blood lines or other cultural protocols, glossary of terms rights of the Aboriginal people of in part, as a body of Indians for whose similar to European royalty. Canada” by section 35 of The use and benefit in common, lands have Aboriginal Consultation The Constitution Act, 1982, to the facts of been set apart. Each band has its own Impacts and Benefits Agreement Crown has a legal duty to engage in the particular case, determines the governing Band Council, usually con- (IBA) A broad term used to describe meaningful consultation whenever it scope of “Aboriginal interest”. sisting of a Chief and several councill- various contractual commitments has reason to believe that its policies or ors. The members of the band usually related to development of land or actions, directly or indirectly, might Aboriginal People These include share common values, traditions and resources subject to Aboriginal rights. infringe upon actual or claimed Status Indians, Non-Status Indians, practices rooted in their language and IBAs usually impose negotiated limits Aboriginal interests, rights or title. Métis and People. ancestral heritage. Today, many bands on a project’s impacts on the environ- As the Supreme Court of Canada said prefer to be known as First Nations. ment, on fish and wildlife, on the land recently, “The nature and scope of the Aboriginal Rights These are rights and First Nations’ traditional use and duty of consultation will vary with the held by some Aboriginal peoples as a Band Chief Someone elected by band enjoyment of same; and IBAs usually circumstances … At all stages, good result of their ancestors’ use and members to govern for a specified term. define a range of negotiated economic faith on both sides is required. The occupancy of Traditional Territories and preferential benefits to flow to the common thread on the Crown’s part before contact with Europeans or Band Council or First Nation First Nation(s) whose lands are to be must be “the intention of substantially before British sovereignty in Canada. Council The band’s governing body. impacted by the development. addressing [Aboriginal] concerns” as Aboriginal Rights vary from group to Community members choose the Chief they are raised through a meaningful group depending on what customs, and councillors by election under Indian The term “Indian” may have process of consultation … Meaningful practices, and traditions were integral section 74 of the Indian Act, or through different meanings, depending on consultation may oblige the Crown to to the distinctive culture of the groups. traditional custom. The Band Council’s context. Under the Indian Act, Indian make changes to its proposed action powers vary with each band. means “a person who pursuant to this based on information obtained through Aboriginal Title In general, Act is registered as an Indian or is en- consultations … The fact that third “Aboriginal title” refers to the rights of Elder A man or woman whose titled to be registered as an Indian”. parties [industry] are under no duty to Aboriginal peoples to the occupation, use wisdom about spirituality, culture and There are a number of terms employing consult or accommodate Aboriginal and enjoyment of their land and its life is recognized and affirmed by the the term “Indian” including Status concerns does not mean that they can resources. The classic legal definition was community. Not all Elders are “old”; Indian, Non-Status Indian and Treaty never be liable to Aboriginal peoples. provided by the Supreme Court of Canada sometimes the spirit of the Creator Indian. Status Indians are those who are If they act negligently in circumstances in Delgamuukw v. British Columbia2: chooses to imbue a young Aboriginal registered as Indians under the Indian where they owe Aboriginal peoples a person. The Aboriginal community and Act, although some would include those duty of care, or if they breach contracts “… aboriginal title encompasses the individuals will normally seek the advice who, although not registered, are entitled with Aboriginal peoples or deal with right to exclusive use and occupation and assistance of Elders in a wide range to be registered. Non-Status Indians are them dishonestly, they may be held of land; second, aboriginal title of traditional and contemporary issues. those who lost their status or whose legally liable. But they cannot be held encompasses the right to choose to ancestors were never registered or lost liable for failing to discharge the what uses land can be put, subject to First Nation A term that came into their status under former or current Crown’s duty to consult.”1 the ultimate limit that those uses common usage in the 1970s to replace provisions of the Indian Act. Treaty Indians cannot destroy the ability of the land the word “Indian”, which many found are those members of a community Aboriginal Interest This is a broad to sustain future generations of offensive. The term “First Nation” has whose ancestors signed a treaty with the term referring to the range of rights aboriginal peoples; and third, that been adopted to replace the word “Band” Crown and as a result are entitled to and entitlements that may arise from lands held pursuant to aboriginal in the name of many communities. treaty benefits. The term “Indian” was long use and occupation of traditional title have an inescapable economic first used by Christopher Columbus in territories by Aboriginal people. component.” (at para. 166, emphasis Hereditary Chief A Hereditary Chief 1492 as he landed in the West Indies, Application of common law, statute in original) is a leader who has power passed down believing he had reached India. law, treaty provisions, and the from one generation to the next along constitutional protection provided to

1 Haida Nation v. British Columbia (Minister of Forests) 2004 SCC i 73, Paragraphs 40-56 ii 2 [1997] 3 S.C.R. 1010 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Indian Act The Indian Act is federal lands – protecting and balancing the and experience, and informed by legislation that regulates Indians and interests of the parties (including generations of elders. TEK is reserves and sets out certain federal claimed Aboriginal title and rights) recognized and used around the world government powers and responsibilities during the treaty negotiation process. as an important environmental toward First Nations and their reserved assessment tool. lands. The first Indian Act was passed in Inuit Aboriginal people in northern 1876, although there were a number of Canada, living mainly in Nunavut, Traditional Territory Lands used pre and post-Confederation enactments Northwest Territories, northern Quebec and occupied by First Nations before with respect to Indians and reserves and Labrador. Ontario has a very small European contact or the assertion of prior to 1876. Since then, it has Inuit population. The Inuit are not covered British sovereignty. undergone numerous amendments, by the Indian Act. The federal government revisions and re-enactments. The has entered into several major land claim Treaty A formal agreement between Department of Indian Affairs and settlements with the Inuit. the Crown and an Aboriginal people or Northern Development administers the peoples. Indian Act. Métis People of mixed First Nation and European ancestry. The Métis Rights specified in a Indigenous Peoples history and culture draws on diverse treaty. Rights to hunt and fish in tradi- a) “Peoples in independent countries ancestral origins such as Scottish, Irish, tional territory and to use and occupy whose social, cultural and economic French, Ojibway and Cree. reserves are typical treaty rights. This conditions distinguish them from other concept can have different meanings sections of the national community, and Memorandum of Understanding depending upon the context and whose status is regulated wholly or (MOU) A formal agreement between perspective of the user. partially by their own customs or governments or organizations. A traditions or by special laws or relevant example is the 1993 MOU Tribal Council A Tribal Council usually regulations;” between the governments of Canada represents a group of bands to facilitate and British Columbia, allocating federal the administration and delivery of local b) “Peoples in independent countries and provision responsibilities for fund- services to their members. who are regarded as indigenous on ing various aspects of the current B.C. account of their descent from the treaty-making process. populations which inhabited the country, or a geographical region to which the Reserves Lands set aside by the country belongs, at the time of conquest federal government for the use and or colonization or the establishment of benefit of a specific band or First Nation. present state boundaries and who, The Indian Act provides that this land irrespective of their legal status, retain cannot be owned by individual band or some or all of their own social, economic, First Nation members. cultural and political institutions.”3 Socio-Economic Participation Interim Measures Agreements Agreement (SEPA) A synonym for (IMAs) The creation of a series of IMAs Impacts and Benefits Agreement. was one of the British Columbia Task Force recommendations that led to the Traditional Ecological Knowledge current treaty process. IMAs are intend- (TEK) “TEK” broadly describes systems ed primarily to regulate the manage- for understanding one’s environment, ment and use of natural resources and based on detailed personal observation

3 A number of definitions are in use; this widely recognized definition iii comes from ILO 169, a widely respected international convention. iv MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

PART I: Aboriginal HISTORY AND BACKGROUND

Introduction will be the mineral exploration and We hope to address two broad audiences mining sectors, we hope that this work and two broad purposes in PART I. will also reach a wider audience. Primarily, we are endeavouring to provide Successful Aboriginal community a foundation of Aboriginal history and engagement is an open process, perspective for the benefit of members requiring active commitment, mutual of the mineral exploration and mining respect and informed communication sectors. Historically, these sectors have on all sides. not been well-prepared for engage- Pre-Contact History ment with Aboriginal communities and Until recently, archaeologists have gen- peoples. With the large majority of erally agreed4 that the ancestors of the ownership, management and field staff Aboriginal peoples of North, Central and coming from non-Aboriginal communities South America came from Asia some and cultures, the prevailing exploration 12,000 years ago: and mining perspectives have been “… via a land bridge known as marked by assumptions and attitudes Beringia, the land surrounding what reflecting those of society-at-large. Until is now the Bering Strait … quite recently, non-Aboriginal society has Archaeologists are certain of two not shown widespread understanding, things: that people have occupied respect, or tolerance for Aboriginal this part of the Americas for at least interests, rights, values, and culture. 12,000 years, and perhaps for 20,000 years or more; and that migrations into these areas involved passing We will not attempt to write a volume through portions of British Columbia.”5 of history in these pages; our goal is to provide a meaningful outline of some Generally, Aboriginal people are not important Aboriginal perspectives, impressed by archaeologists’ land revealing some of the historical roots bridge theories regarding their origins for those perspectives, and calling for and primal connection to their lands, as continued progress toward early, Nisga’a Chief David Mckay (Sim’oogit inclusive and open Aboriginal community Axhlaawals) explained in 1888, engagement. While our primary audience

4 Bob Joseph, President and Founder of INDIGENOUS CORPORATE 5 Robert J. Muckle, THE FIRST NATIONS OF BRITISH COLUMBIA, TRAINING advises that recent research indicates that waves of migration (Vancouver: UBC Press, 1998) 15 1 have occurred over a longer period of time than indicated by the land bridge theory. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

“I wish to say that every mountain why our people have indicated that Contact History and every stream has its name in our we will never agree to an extinguish- It is all but impossible for non-Aboriginal language, and every piece of country ment of aboriginal title.”8 people to comprehend the enormity of is known by the name our forefathers the impact on the Indigenous peoples gave them … God gave this land to By about 10,000 years ago, the glacial our fathers a long time ago, and they of the Americas created by the arrival ice had retreated from most of British made gardens and made homes and of Christopher Columbus in 1492, and Columbia’s land mass, allowing a wide when they died they gave them to us.”6 by the waves of Europeans who soon variety of plant and animal life to followed him. establish, and permitting people to Aboriginal peoples’ creation myths migrate from previously ice-free regions vary widely in their details, but a Thomas R. Berger, former B.C. Supreme to the north, south, and southeast. central theme links these origin stories. Court Justice and Commissioner of Between 3,000 and 5,000 years ago Generally, the people were placed in Mackenzie Valley Pipeline Inquiry of what is now British Columbia in 1774. saw the emergence of the varied and their territories by the Creator; then 1974-7711, provides us with a powerful In eastern Canada, the English and sophisticated “lifeways”9 for which their enduring values, languages and glimpse, French were extending their intermittent the Coastal Aboriginal peoples have customs were imparted – either by the “Since 1492, Native Institutions, their European conflict in a bitter struggle for become famous: i.e. primary reliance 7 lifeways and their lands have been Creator or other supernatural powers. control of New World peoples, territories, on salmon, complex social and political under attack. The history of the This sense of sacred trust and connec- and trade. By contrast, the primary organization, large winter villages, Americas has been the history of the tion to the land underpins claims that focus of the eighteenth century Spanish advanced plant and stone technologies, encroachment of European societies Aboriginal title to ancestral lands was and Russian explorers who ranged up and distinctive art. Similar (although less on the Native peoples. The not extinguished by colonial occupation. imposition of European values on and down the west coast of North richly varied) development occurred in the Native communities has entailed an America was less invasive. Trading for southern interior during this period.10 Nisga’a Chief James Gosnell (Sim’oogit attempt to inculcate the European furs and searching for an inland passage ideas of development, of economic Hleek) said in 1982, across the continent to the Atlantic “What do we mean by aboriginal progress, of the paramountcy of mattered more than conquest. By the rights? In answering this question, saving, accumulation and investment. last decade of the 1700’s, the Spanish had the most important thing that must Columbus, writing to the King and be borne in mind is that all of our Queen of Spain, described the Indians claimed the west coast from Mexico to rights flow from our relationship to of the West Indies as, ‘So tractable, and the Russians had the land. Our lives, our culture and so peaceable … that I swear to your made an overlapping claim for control our continued existence as a people Majesties that there is not in the of the Pacific coast from Alaska to San world a better nation.’ Nevertheless, are completely tied to the land in the Francisco. Neither nation had made much area in which our ancestors have he said, they should be ‘made to headway in establishing sovereignty.13 lived since time immemorial. That is work, sow and do all that is necessary to adopt our ways.’”12 In 1778, Captain James Cook of Britain

6 “The Nisga’a have held the land of the Nass River in sacred trust from They recognize the potential problems in this, including deliberate and his storm-battered crew became God since time immemorial. All Nisga’a culture is woven inextricably into attempts to deceive, but notwithstanding a few exceptions, most Under the flag of Spain, the first this land. This is the story of their struggle to have this reality recognized information gathered through oral tradition in British Columbia is the first white people to land on the by others and so have a meaningful and God-given place in Canada.” considered reliable and is supported by archaeological and historical Europeans visited the west coast of From the Foreword, + Wii Ts 'imilx, Bishop of Caledonia. Editorial research.” See Muckle, THE FIRST NATIONS OF BRITISH COLUMBIA, west coast of Vancouver Island, and to Committee of the Nisga’a Tribal Council, Nisga’a, People of the Mighty Ibid, 26 River, (New Aiyansh: Nisga’a Tribal Council, 1992) 10 “The unique, complex, and sophisticated cultures characterizing many 7 Muckle, THE FIRST NATIONS OF BRITISH COLUMBIA, Ibid, 12 First Nations of British Colombia for at least the last 3,000 years are often perceived as being directly related to the ability to harvest salmon in such 11 13 8 “Nisga’a: People of the Mighty River”, Ibid. Berger's report of findings and recommendations, “Northern For an excellent discussion, see: Aniel Raunet, WITHOUT abundance that it permitted the development of permanent or semi- 2 9 Homeland, Northern Frontier”, is widely regarded as a seminal work in SURRENDER, WITHOUT CONSENT: A History of the Nisga’a Land 3 “The description of traditional lifeways, often referred to as permanent villages and sophisticated technology. With these changes the struggle for jurisdictional justice among the world's northern peoples. Claims, (Vancouver/Toronto: Douglas & McIntyre, 1996, Second Edition) ethnography, is one of the basic goals of anthropology. In many places came larger populations, social stratification, long-distance trade, warfare, 12 Thomas R. Berger, A LONG AND TERRIBLE SHADOW: White Values, 17-25 where First Nations did not have written forms of their languages at the heraldic art, and complex ceremonies such as the potlatch.” Muckle, Native Rights in the Americas, 1492-1992, (Vancouver: Douglas & time of European contact and where the cultures have undergone Supra, 17-18 significant change since then, such as in British Columbia, anthropologists McIntyre, 1991), x-xi have relied primarily on oral traditions to reconstruct traditional lifeways. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

chart the region.14 The local Mohochat The Royal Proclamation of 1763 Purchases or Settlements whatever, or Between 1850 and 1854, Douglas taking Possession of any of the Lands people called them “Mamahuit” – “the The pivotal British victory over France at negotiated 14 separate purchase 15 above reserved, without our especial ones who lost their way in the fog.” the Battle of the Plains of Abraham in treaties with leave and Licence for that Purpose By 1849 Britain had declared Vancouver Vancouver Island 1759 signalled the imminent collapse first obtained.”18 20 Island as a Colony of the Empire; of New France. Montreal fell the Aboriginal Nations. following in 1858 with the formation of following year. The famous Royal The Douglas Purchase Treaties The Douglas Purchase the Colony of British Columbia. In Treaties have legal Proclamation of 1763 was issued by James Douglas was the Governor of the general, we can say that European contact and historical sig- Britain’s King George III, mainly as an new Colony of Vancouver Island from came much later and with far less initial nificance for two attempt to prevent conflict between 1850 to 1864 (and of the mainland impact in western Canada than in what reasons. First, these the anticipated stampede of British Colony of British Columbia from 1858 became Canada’s eastern provinces. Non- 14 agreements were based on the settlers and the Aboriginal Nations. to 1864). Governor Douglas was a far- natives didn’t begin to settle in British principle of “cession” – a legal device While it did not achieve its immediate sighted and powerful administrator: Columbia in significant numbers until purpose, the Proclamation had pro- “As the senior representative of the approved by both British policy and 16 1858 - more than two hundred years found implications, both immediately British Empire on the island, Douglas international law at the time, for use by after French settlement began along and through the course of Canadian cultivated ties with the indigenous the Crown to acquire lands of population. He believed that “… a pre-existing society of the banks of the St. Lawrence River. and American history.17 hostility toward natives would be a indigenous people holding specific Post-Contact History calamity for business, historian Robin territories subject to cultivation. The Royal Proclamation of 1763 Fisher writes in Contact and Conflict. Acquisition would require the On both the Atlantic and Pacific fronts, declared that, it being Maintaining friendly relations with consent of the indigenous people to early developments suggested a more “… essential to our Interest, and the the natives, treating them equally transfer their sovereignty and mutually beneficial approach to Security of our Colonies, that the under the law and limiting interfer- portions of all or a portion of their European-Aboriginal engagement than several Nations or Tribes of Indians ence in their way of life, was in the land to the acquiring state. This new what ultimately transpired. In the with whom We are connected, and interests of the Hudson’s Bay Company. relationship would then be set out in initial years of contact, the balance of who live under our Protection, should a formal treaty. Those acquiring the not be molested or disturbed in the sovereignty and the territory were power was still in flux. That the Douglas was prepared to assert the Possession of such parts of our full force of his authority, as he required to pay compensation to European technological and military Dominions and Territories as … demonstrated when he stood up to those who had ceded it.”21 advantage was ultimately so over- are preserved to them … as their 200 armed natives at Cowichan in whelmingly decisive makes it easy to Hunting Grounds, therefore any 1853. But as settlers replaced fur It would be argued later by other forget how organized, sophisticated, lands that had not been ceded to or traders, igniting violent competition Aboriginal nations that the Douglas and powerful many Aboriginal Nations purchased by Us as aforesaid, are for land, he became a sympathetic purchase treaties presumed and were in those days. The Europeans reserved to the said Indians. advocate for the natives.”19 Furthermore, We do hereby strictly demonstrated British acknowledgement desperately needed them as trading forbid, on Pain of our Displeasure, all of pre-existing and unextinguished partners, wilderness-survival tutors, and our loving Subjects from making any military allies. 18 Berger, A Long and Terrible Shadow, Ibid, 61-62 20 Eleven of the treaties involved lands within today's Victoria, Sooke, and 14 Acts” used to justify the American War of Independence. “The 19 Robert Matas, No 1: JAMES DOUGLAS - His mind was sharp, his Saanich. Two involved Fort Rupert, and one was concluded at Nanaimo. This is the traditional view, but recently published evidence strongly These last three treaties were motivated by the Colony's need to secure suggests that in 1579, almost two hundred years earlier, Sir Francis Drake Declaration of Independence charged that the British King “… has excited hand was strong, The Globe and Mail, April 16, 2005, S1. Matas noted: domestic insurrection among us, and has endeavored to bring on the “James Douglas was a cold, crafty and selfish man with strong prejudices. coal deposits to power steam ships and to heat new homes and and his legendary Golden Hinde reached Vancouver Island (and perhaps commercial buildings – representing the first non-agricultural economic as far north as the coast of Alaska) in the course of his three year, 65,000 inhabitants of our frontiers, the merciless Indian Savages, whose known He took ludicrous measures to appear grand, insisting on salutes being rule of warfare, is an undistinguished destruction of all ages, sexes, and fired whenever he entered or left a fort. He was said to be a great hand activity embarked upon by non-Aboriginal people in British Columbia. km circumnavigation of the globe. In any event, there is no evidence of The Douglas purchase treaties covered about 576 square kilometres, further European contact with British Columbia's west coast until the conditions.” at flogging. But without Old Square Toes, British Columbia would be part of the United States, the natives west of the Rockies would be nearing about three per cent of Vancouver Island's total land mass. See: 1770's. See: Samuel Bawlf, The Secret Voyage of Sir Francis Drake, Christopher McKee, TREATY TALKS IN BRITISH COLUMBIA: (Toronto and Vancouver: Douglas & McIntyre, 2003) In the long term, the Proclamation would have other profound extinction and the development of the province would have been pushed 4 implications. It would, after the British had retired from North America, back years, if not decades. Negotiating a Mutually Beneficial Future, (Vancouver/Toronto: UBC 5 15 Aniel Raunet, WITHOUT SURRENDER, WITHOUT CONSENT, Ibid, 18 and, after two new nation-states, the United States and Canada, had A Globe and Mail panel on the greatest British Columbian of all time had Press, 2000) 13 16 Muckle, THE FIRST NATIONS OF BRITISH COLUMBIA, Ibid, 64 been established, be instrumental in the recognition by the courts of both no doubts about who should be No. 1. Without hesitation, panel 21 Supra, 14 17 The British policy of protecting Aboriginal lands from encroaching countries of the distinctive political status and aboriginal rights of the members Lily Chow, Daniel Francis, Jean Barman and Thomas Berger put White settlers that underlay the Proclamation was one of the “Intolerable Indians.” See Berger, A Long and Terrible Shadow, Ibid, 62. Douglas at the top of the list.” MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Aboriginal title. Second, these On Aboriginal title, Trutch simply Accordingly, Trutch ruled that reserve Essentially, this meant that a white settler 14 purchase treaties are important dismissed the Douglas purchase treaties boundaries should be adjusted to restrict could take title to an “unoccupied, because, from the conclusion of the last as friendship agreements.25 His policy each Aboriginal family to a maximum unsurveyed, and unreserved” tract of land of them in 1854, almost half a century position on Aboriginal title was made of 10 acres each. A surveyor’s report at larger than a neighbouring reserve would pass before British Columbia clear in an 1870 address to the the time noted that these “adjustments” occupied by 30 Aboriginal families – who entered another treaty affecting Governor: released approximately 40,000 acres for in turn were restricted to their reserve. Aboriginal land.22 “The title of the Indians in the white settlement.28 fee of the public lands, or any Viewed from a 21st century perspective, portion thereof, is strictly denied. Joseph Trutch and B.C.’s New Finally, on the pre-emption question, Trutch’s views and measures may seem In no case has any special agreement Land Policy: Denial of Aboriginal Trutch persuaded the Colonial Legislature one-sided and draconian, but they Title been made with any of the tribes of the Mainland for the extinction of to pass the Colonial Land Ordinance on resonated strongly in the expansionist After James Douglas retired in 1864, their claims of possession; but these June 1, 1870. The Ordinance stated: political and economic climate of the British Columbia’s policy toward claims have been held to have been “…any Male person being a British day.29 The ‘Trutch View’ endured as the Aboriginal rights and lands changed fully satisfied by securing to each Subject, of the age of eighteen years core of the British Columbia govern- dramatically. Most of the reserves or over, may acquire the right to tribe, as the progress of settlement ment’s Aboriginal policy for the next Douglas had established were reduced of the country seems to require, the pre-empt any tract of unoccupied, 125 years. in size, and local authorities began to use of sufficient tracts of land for unsurveyed, and unreserved Crown Lands (not being an Indian Settlement) deny Aboriginal title in explicit terms.23 their wants of agriculture and Disease, Death, and Joseph Trutch, serving as the pastoral purposes.”26 not exceeding Three Hundred and Twenty Acres in extent in that Depopulation Commissioner of Land and Works, portion of the Colony situated to the Throughout the Americas, Aboriginal emerged as a major influence over the On the question of reserve size, Trutch’s Northward and Eastward of the contact with Europeans was soon young colony’s Aboriginal land policy.24 view was equally straightforward and Cascade or Coast Range of Mountains, His three major legacies were: to estab- followed with drastic declines in native convenient for the Colonial government and One Hundred and Sixty Acres in population. With no natural immunity lish the British Columbia government’s and its non-Aboriginal citizens: extent in the rest of the Colony. policy rejecting the existence of “The Indians really have no right to to communicable diseases introduced Aboriginal title, to reduce the size of the lands they claim, nor are they of Provided that such right of pre- by the Europeans, and with little access the reserves established under Douglas’ any actual value or utility to them; emption shall not be held to extend to vaccines, Aboriginal people were tenure as Governor, and to persuade I cannot see why they should either to any of the Aborigines of this decimated by waves of epidemics of retain these lands to the prejudice of the Colonial government that Continent, except to such as shall smallpox, tuberculosis, scarlet fever, the general interests of the Colony, have obtained the Governor’s special Aboriginal people should be prevented influenza, and measles.30 British or be allowed to make a market of permission in writing to that effect.” from using the legal device of Columbia’s mid-1700’s Aboriginal them either to Government or to “preemption” to obtain title to lands individuals.”27 that were previously unoccupied. 28 Supra, 19 In North America, Europeans looked upon the appalling losses among the 29 Indian populations as providential. The depopulation of Native lands left “To many non-Aboriginal peoples, Trutch's views were persuasive large tracts available for colonization, to the satisfaction of many because they were consistent with their views and with those of the local European immigrants. One Frenchman said that “it appears visibly that government. There was no better way to reinforce non-Aboriginal God wishes that they yield their place to new peoples.” 22 Following an armed Aboriginal blockade that threatened the flood of 24 Trutch's opportunity to influence government policy was enhanced by interests in the land than to demonstrate that Aboriginal peoples neither Klondike-bound adventurers in 1898, the federal and provincial the merger of the Colonies of Vancouver Island and British Columbia in owned the land nor even conceived of owning it. Continuing Douglas's Studies of the impact of the advent of Europeans in more recent times governments hastened to extend Alberta's Treaty 8 to cover Aboriginal 1866. efforts at treaty-making was pointless: if Aboriginal title did not exist, bear out the likelihood of a drastic and general decline in Indian numbers lands in B.C.'s western Peace River Country. 25 there was no interest in the land that had to be purchased. Furthermore, in North America owing to disease. In the 1890's, the American whaling Trutch argued that Governor Douglas had entered “… agreements the reserves set aside for Aboriginal peoples should not be seen as 23 The British Imperial Government's declining interest in the colony and with the various families of Indians … for the relinquishment of their fleet from San Francisco entered the Beaufort Sea and established whaling recognition of Aboriginal title or of the surrender of title to the land stations in the western Arctic. Eskimos were hired to gather driftwood to in the welfare of its Aboriginal peoples was the main impetus for these possessory claims in the district of the country around Fort Victoria, in adjacent to reserves. Reserves were nothing more than gifts from the policy changes. “Support among the English public for the general goals consideration of certain blankets and other goods presented to them. But conserve the ships' stocks of coal, and to hunt caribou and muskoxen to Crown to Aboriginal peoples.” Supra., 19 supply the whalers with fresh meat. Whaling took a heavy tool of of the British Empire was on the decline, and both London and the these presents were, as I understand, made for the purpose of securing 30 Colonial Office saw little advantage in shouldering the costs of friendly relations between those Indians and the settlement of Victoria, “A group of ethnohistorians, led by Henry Dobyns … asserts that bowhead whales. But it was not just the animals that were affected by maintaining a significant interest in the colony. One result was that much then in its infancy, and certainly not in acknowledgement of any general epidemics were decisive demographic events. He estimates the the coming of the whalers. of the control over Indian policy was left in the hands of local officials, title of the Indians to the land they occupy.” See: McKee, TREATY population of North America before the arrival of Columbus to have been 6 who, while sharing interests in the land with other white settlers, were TALKS IN BRITISH COLUMBIA, Ibid, 18 more than 18 million, and post-contact decline of 95 per cent over 130 The whalers brought syphilis, measles and other diseases. When the 7 years. He concludes that only the devastation of repeated epidemics whaling industry collapsed in 1908, of the original population of 2,500, now dealing with issues that deeply affected their lives. It was not 26 Supra, 18 surprising, therefore, that Aboriginal peoples would receive less than fair could account for a loss of this magnitude. there were only about 250 Mackenzie Eskimos left in the region between 27 Supra, 19 treatment by the colonial government in the years to come.” See: McKee, Barter Island and Bathurst Peninsula.” See Berger, A LONG AND TREATY TALKS IN BRITISH COLUMBIA, Ibid, 17 TERRIBLE SHADOW, Ibid, Chapter 3, 33 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

population has been estimated at more of 1869-70 and the North-West By the 1840’s the Red River Settlement’s unfolded: The Dominion of Canada than 250,000. By 1835, that number had Rebellion of 1885 have inspired other population had swelled to 5,800 Métis purchased the vast territory of Rupert’s fallen to about 100,000; by 1885, to Aboriginal peoples in their quests for and 1,600 non-Aboriginals. The Land36 from the Hudson’s Bay Company 28,000; and by 1929, B.C.’s native pop- greater autonomy, to the present day. Hudson’s Bay Company was uneasy for the sum of 300,000 English pounds. ulation bottomed out at about 23,000.31 about the threat to its fur trading By that time more than 11,000 people The Red River Settlement monopoly posed by the Settlement’s lived in the thriving Red River Settlement; The Métis Nation In 1801, a group of Métis settled at the burgeoning commercial activity. In not one of them was consulted about During the 1600’s, France began intersection of the Red and Assiniboine 1849, the Company’s Directors per- the sale. establishing settlements along the Rivers, where Winnipeg stands today. suaded the North-West Police to charge St. Lawrence River to advance its fur They were referred to as “Freemen”, Guillaume Sayer and three other Métis Led by Louis Riel, Jr., the Métis rebelled. trade interests. The prevailing because they were bound by neither with “smuggling” furs. Louis Riel, Sr.34 After a period of brilliant military and “seigneurial” landholding system was Indian nor Fur Trade company law. and 300 other Métis surrounded the political success, Riel blundered by a legacy of the feudal age: rigid and They set up narrow river lots similar to courthouse and heard the traders allowing his new Provisional restrictive.32 So, enterprising Frenchmen the seigneurial lots created earlier pronounced “Guilty”, but released Government to execute Thomas Scott, (soon to be known as “coureurs des along the St. Lawrence. without punishment. The Métis an unrepentant Orangeman from bois” (runners in the woods) sought to interpreted this ambiguous result as an Ontario who had been charged with improve their prospects by venturing In 1811, the Hudson’s Bay Company acquittal and concluded that no one bearing arms against the new state. into the wilderness, despite restrictions granted 116,000 square miles of land could be penalized for trading furs. Scott’s instant martyrdom led to Riel’s imposed on them by King Louis XIV. in the fertile Red River Valley to Lord The case is significant because it sparked undoing. In 1871, the Parliament of The coureurs des bois began establish- Selkirk. Efforts by the settlers to the perception that the Hudson’s Bay Canada passed the Manitoba Act: ing homes for themselves within or restrict Aboriginal hunting and trading Company’s fur trading monopoly had providing for the acceptance of the beside Indian communities, marrying practices led to conflict. In 1816, been broken, fanning the aspirations of Red River Settlement and surrounding Aboriginal women, and starting families. Cuthbert Grant Jr. led the Métis to the Métis and their allies.35 territories into Canada as a full-fledged The birth of their children marked the victory at the battle of Seven Oaks, province, and calling for the dispatch of birth of the Métis Nation.33 after which he unfurled the flag of the The new Dominion of Canada recognized twelve hundred soldiers to ‘protect’ the Métis Nation. the urgent need to consolidate its settlements. As the troops from The Métis people played an important western and southern flanks against Ontario finally arrived, after more than role in the history of Canada. They the threat of American expansion, and three months of hard marching often acted as middlemen between the Hudson’s Bay Company saw that it through the bush and muskeg, Riel Europeans and Aboriginals: encouraging was unable to control the increasingly belatedly recognized that they were trade and commerce, and mediating powerful and independent Red River coming to arrest him. He fled to the disputes. Also, and perhaps more Settlers. So, in 1869, one of the key United States, where he remained in significant, their legendary struggles for events in Canadian history quietly exile for more than a decade.37 independence in the Red River Rebellion

31 who had children together. The “coureurs des bois” and their Indian Muckle, THE FIRST NATIONS OF BRITISH COLUMBIA, Ibid, 60-61 34 Louis Riel, Sr. was the father of Louis Riel, Jr., legendary leader of the 35 “For the next twenty years, the caravans of Red River carts continued wives were the parents of the Métis Nation that began with the birth of 32 Red River Rebellion of 1869-70 and the North-West Rebellion of 1885. to squeak and squeal back and forth unimpeded between the Red River Established in New France in 1627 and not officially abolished until their children. It is understood by Métis people today that the The senior Riel also was a a man of uncommon resolve. He was known and St. Paul [Minnesota]. Widespread trade in pots, kettles, stoves, farm 1854, the seigneurial system of land distribution and occupation relied on intermarriage of their ancestors involved more than just the blending of as the “Miller of the Seine. “To increase the flow of water over his mill implements and liquor grew year by year until, in 1867, it topped two 8 the personal dependency (i.e. indenture) of the “censitaires” (tenants) on races and cultures; it was an evolution that culminated in the birth of a 9 wheel, the miller had dug a nine-mile channel from the Red River over to thousand caravans a year.” Ibid., 84 the “seigneur” (landowner). In New France, the censitaires were called new Aboriginal Nation with its own language, called Michif. The Métis a creek that was named after the famous French river … [Louis Riel, Sr.] “habitants”. See “Seigneurial System”, HighBeam Research, people had their own food, clothing, history, body politic, and flag. There 36 The Company kept control of just 6 million of the 120 million acres had planned to build a woollen factory, but the mighty Hudson's Bay www.highbeam.com/library/doc0/asp? is a national definition of Métis. It means a person who self-identifies as stretching from Fort Garry to the Rocky Mountains. Company frowned on industry in fur country. See: Robert Hunter & 33 The word “Métis” comes from the Latin “Miscere” meaning “to mix” Métis, is of historic Métis Nation ancestry, is distinct from other Aboriginal 37 Robert Calihoo, OCCUPIED CANADA: A Young White Man Discovers Riel remained a powerful political force in exile; he was elected three and is used generally to describe European men and Aboriginal women peoples, and is accepted by the Métis Nation. His Unsuspected Past, (Toronto: McLelland & Stewart, Inc., 1991) 84 times to the House of Commons in absentia. Once he snuck into Ottawa to sign the Members' Register in the House, barely escaping with his life. Supra, 90 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Louis Riel, Jr. and the Northwest trusted lieutenant] hissing at them to Big Bear lasted longer; it took a little Rupert’s Land. Riel’s Métis provisional Rebellion of 1885 spare the ammunition. The advan- less than two years’ imprisonment to government issued the “Declaration of cing militia was equipped with 70,000 destroy him. He was released in The Northwest Rebellion of 1885 began the People of Rupert’s Land in the Gatling-gun rounds and 1.5 million March 1887 and died ten months later.” with Louis Riel, Jr. returning with his North-West.” bullets for their rifles. When, after wife, two small children and a few four days, one of the [North-West] As for Riel, he saw at least one of his The Indian Act supporters to seize the church at officers called for a bayonet charge, visions fulfilled. Just before crossing into Batoche, Saskatchewan, declaring and led nine hundred screaming Many laws affecting Aboriginal peoples Canada on his way to Batoche, he had “Rome has fallen.” Riel formed the soldiers into Batoche to overcome were combined in 1876 to become the confided to a priest: “I see a gallows on “Provisional Government of the two hundred out-of-work buffalo- Indian Act. The Indian Act gave Canada hunters firing metal buttons, nails, top of that hill, and I am swinging from Saskatchewan” and sent 400 men into a coordinated approach to Indian policy and even pebbles, it was over swiftly. it.” He was convicted of treason and action. Among the Métis’ demands rather than the pre-Confederation Riel’s surrender three days later was hanged on November 16, 1885.”40 piece-meal approach. were local control of lands, responsible almost as anticlimactic as the government, parliamentary repre- surrender of Poundmaker’s Crees. CONSTITUTIONAL HISTORY sentation, and confirmation of their OVERVIEW There are three main areas of legislation 43 land title in accordance with the river In all about eighty whites and as contained under the Indian Act : Land, lot system survey. While the rebels won many Métis and Indians had been The British North America Act Membership, and Local Government. killed. The Cree leaders, Poundmaker a few legendary guerrilla battles (i.e. at and Big Bear, were charged with Canada officially became a country in Assimilation Policy Duck Lake and Fish Creek, where the treason-felony, even though 1867 with the passage of the British By 1880, the Government of Canada Métis and their predominantly Cree Dewdney [Lieutenant Governor of North America Act.41 Pursuant to had decided to apply its broad Indian allies prevailed against odds of at least the North-West Territories and Indian section 91(24) of the Act, the federal Act powers to the strategic goal of five to one)38, in the end they were Commissioner] and his bosses in government was given authority to Ottawa knew that neither man had assimilating the Aboriginal peoples into hopelessly out-manned and out-gunned. make laws about “Indians and lands been guilty of insurrection. But these the mainstream of Canadian society. reserved for the Indians”.42 two were the remaining agitators On May 5, 1880, Sir John A. Macdonald In OCCUPIED CANADA, Robert Hunter39 for treaty revisions, and it was in stood in the House of Commons to and Robert Calihoo provide a Ottawa’s interest to lock them away. In 1869, Rupert’s Land, including the announce that his government’s Indian compelling account of the outcome The chiefs were each given three Red River Settlement, was transferred policy was (from a partisan perspective not often years in the newly built Stony by the Hudson’s Bay Company to the “... to wean them by slow degrees, heard in non-Aboriginal Canada): Mountain Penitentiary, a gothic Dominion of Canada. Louis Riel, Jr. from their nomadic habits, which “Carried from the Lakehead by train, fortress in the middle of the plains blocked the Canadian delegation and have almost become an instinct, and the eight thousand-man North-West north of Winnipeg. “I would rather Government surveyors from entering by slow degrees absorb them or Field Force was deployed to staging prefer to be hung at once than to be points along the newly-laid tracks in in that place,” Poundmaker cried. time for a spring offensive … When Prison life and prison guards broke the inevitable siege of Batoche came, the two proud chiefs: Poundmaker 40 Supra, 120-121 children from homes, monitor movements, prohibit “undesirable” 41 activities, seize property, deny freedom of speech, religion, and self- Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 (formerly British expression, and throw “troublemakers” into jail promptly. Indians could the Métis fought valiantly, with Riel was so far gone physically after less North America Act, 1867) not vote, drink, or own any land.” than a year that he was released, 42 It is important to recognize that while British Columbia's entry into A less partisan but still very critical view of the Indian Act is provided by crawling through the trenches Confederation in 1871 brought Section 91(24) into play, there were still Stephen O'Neill: “The Indian Act is one of the most outmoded and only to die four months later. many areas where the Province could (and did) use its jurisdiction to archaic pieces of legislation in this country. This Act, first put on the mumbling prayers and Dumont [his restrict Native ability to organize and act politically. For example, in 1872 statute books in 1876, clearly reflects a century-and-half-old view of the British Columbia prohibited Aboriginal peoples from voting in provincial rights and responsibilities of Canada's Aboriginal peoples. The Indian elections. Act is a sweeping code by which the federal government sets out rules and procedures affecting almost all aspects of life on an … 43 See: Hunter & Calihoo, OCCUPIED CANADA, Ibid, 143 for a strongly 38 Supra, 117-122 [T]he Minister of Indian Affairs is given the authority to make ultimate partisan Aboriginal perspective on the Indian Act: “In its initial efforts to 39 decisions on behalf of a band, either by approving decisions or overruling 10 Robert Hunter was the first Chairman and President of the deal with the problem of the surviving inhabitants of the land which 11 them.” See: Stephen O'Neill, DECISION MAKING ON RESERVES - THE Greenpeace Foundation. Canada had just taken at gunpoint, the lawmakers in Ottawa cooked up CURRENT SITUATON, in “Aboriginal Issues Today: A Legal and Business a legislative witches' brew of regulations that covered every imaginable Guide”, Ibid, 98 contingency in an Indian's life, leaving government agents hovering over his or her every activity from birth to death, with the power to snatch MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

settle them on the land. Meantime and Band. Council members replaced century.48 Hunter and Calihoo provide a of being dragged away from their they must be fairly protected.”44 the Potlatch ceremonies for bleak summary of the Aboriginal homes and cast into strange places, confirmation of Hereditary Chiefs. perspective on the result: where they were beaten if they got A number of specific measures were “It began innocently enough. There caught speaking their own languages … Since the residential schools were systematically deployed to give effect to Residential Schools was one thing the Indians all agreed all denominational, Christian this assimilation policy, as outlined below. In 1844, the Bagot Commission of the they wanted: education. Promises were made about schools and indoctrination was the main focus: United Province of Canada recommended teachers. The federal government learning a trade came a poor second. Women’s Status training students in “as many manual could have funded day schools on the Since 1869, an Indian woman who Not surprisingly, children ran away labour or Industrial schools as possible … reserves or established boarding from the residential schools in droves. married a non-Indian man lost her In such schools … isolated from the schools near the reserves, both of So many escaped that the RCMP were Indian status on marriage. The children which might have stood a chance of influence of their parents, pupils would used to chase them down and haul of the marriage were also not entitled imperceptibly acquire the manners, habits working. Instead, it built three token them back into classes. The “problem” to Indian status. This provision was not and customs of civilized life.”46 “industrial schools,” scattered at of escaping children got to the point changed until 1985, when the Indian distant points from each other across where the government passed a law the prairies, and otherwise tossed stating that Indian parents had no Act was amended to remove discrimi- In 1879, the Davin Report recom- grant money into the laps of authority over their children while nation against women, to be consistent mended residential schools based on whichever churches wanted to take the kids were in residential school. with the Canadian Charter of Rights the American model. Davin reported on responsibility for the education of and Freedoms.45 that the boarding school approach was Indian children. The fastest way to The situation would have been enough of a nightmare for parents, the best answer because: it “… took civilize the Indians, the priests and Potlatch Law politicians agreed, was to remove the grandparents, aunts, uncles, and [the Aboriginal child] from the reserve children alike, even if it hadn’t Indian kids from “the surroundings From 1884 to 1951, the Indian Act and kept him in the constant circle of turned out that the white men had which tend to keep them in a state prohibited Indians from participating civilization, assured attendance, built such sub-standard buildings into of degradation.” which to herd a captive generation in the Potlatch, the Sundance, and removed him from the “retarding of young Indians that many of the all other similar cultural ceremonies 47 influence of his parents ...”” Since it was widely assumed in the children sickened and died. In 1914, across Canada. To the west coast 1920’s by the white man that the , former Aboriginal Nations, the Potlatch was an Requiring Aboriginal children to Indian didn’t have the “physical, Deputy Superintendent General of institution central to the culture, participate in the public school system mental or moral get-up to enable Indian Affairs confessed: him to compete,” as one Indian “…the system was open to criticism. governance, and spiritual essence of the was seen as an important instrument of Commissioner phrased it in a report Insufficient care was exercised in people, combining the processes of the assimilation policy, and compulsory to Ottawa, the only thing to do was the admission of children to the government, court, and church. Under attendance was incorporated into the to teach him a trade. Taking their schools. The well-known the Indian Act, the election of Chiefs Indian Act early in the twentieth grant money, the priests quickly set predisposition of Indians to tuber- culosis resulted in a very large up residential schools – as far as percentage of deaths among the possible from the bad influence of pupils. They were housed in home, family, and friends. Indian 44 It should be noted that the seeds of this assimilation policy were sown side. Although it was reflected in subsequently negotiated treaties and buildings not carefully designed decades earlier. In 1857, the legislatures of both Upper Canada and land claims agreements, the Crown would not formally acknowledge the children shared the common trauma Lower Canada passed the Gradual Civilization Act, marking “… one of nation-to-nation relationship as an explicit policy goal again until the for school purposes, and these the most significant events in the evolution of Canadian Indian policy. Its 1980's.” premise was that by eventually removing all legal distinctions between See: www.ainc-inac.gc.ca/ch/rcap/sg/sg23_e.html (The GRADUAL Indians and non-Indians through the process of enfranchisement, it would CIVILIZATION ACT: Assimililating Civilized Indians) 48 maltreatment and abuse experienced by children at residential schools. be possible in time to absorb Indian people fully into colonial society. 45 Canadian Charter of Rights and Freedoms, Part I of the Nathalie des Rosiers, President, Law Commission of Canada, Remarks for a speech delivered at the “Moving Forward Conference”, Sydney, Second, the affronts to the collective dignity, self-respect and identity of Constitution Act, 1982, being Schedule B to the Canada Act 1982 Aboriginal peoples that occurred in residential schools are closely linked to … The new policy created an immediate political crisis in colonial/Indian Australia, August 15, 2001: “What distinguishes residential schools for (U.K.), 1982, c. 11. the nature and scope of the redress individuals and communities now relations in Canada. The formerly progressive and cooperative Aboriginal children is that they were part of a policy of assimilation that 46 seek. Third, there remains today a significant need for public education. relationship between band councils and missionaries and humanitarian www.turtleisland.org/news/news-residential2.htm was sustained for many decades: the residential school experience 12 All Canadians must be offered the opportunity to understand the 13 Indian agents broke down in acrimony and political action by Indians to 47 www2.uoguelph.ca/dfischli/spotlights/s_p_davin.cfm “Report on influenced the lives of several generations of people … The Commission's destructive influence of the residential school system and to appreciate see the act repealed. Indian peoples' refusal to comply and the Industrial Schools for Indians and Half-Breeds”, Submitted in Ottawa on review of the increasing amount of information on residential schools for why the federal government is morally obliged to take significant steps to government's refusal to rescind the policy showed that the nation-to- March 14, 1879. Aboriginal children has led it to three conclusions. First, racial attitudes help survivors and their communities.” nation approach had been abandoned almost completely on the Crown about the backwardness and inferiority of Aboriginal peoples fuelled the MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

buildings became infected and It is the Queen’s land just the same, Other Legislation dangerous to the inmates. It is but the Queen gives it to her Indian Other federal and provincial legislation quite within the mark to say that children because they do not know has played a role in creating the com- fifty per cent of the children who so well to make their own living the plex Aboriginal issues that challenge passed through these schools did same as the white man and special not live to benefit from the the current generation of Canadians. indulgence is extended to them, and education which they had received special care shown. Thus, instead of therein.””49 For example, did you know? being treated as a white man, the • Aboriginal Peoples were prohibited Indian is treated better. But it is the from voting in provincial elections Many of today’s Aboriginal leaders are hope of everybody that in a little until 1948. survivors of the residential school while the Indians will be so far program.50 By 1931, 80 residential advanced as to be the same as a • Aboriginal Peoples were prohibited schools existed across Canada. In 1951, white man in every respect.”51 from voting in municipal elections the federal government began a four- until 1949. decade long process of shutting down In 1913, the Nisga’a travelled to London • Aboriginal Peoples were prohibited from Band Chiefs and Councils, other the schools; the last residential school to petition the Privy Council to settle voting in federal elections until 1960. Aboriginal leaders across the country, for Aboriginal children closed in 1986. their Land Question. In 1916, various • Aboriginal veterans of war lost their and human rights leaders have called interior and coastal Aboriginal Indian status. Many Aboriginal World for increased Aboriginal autonomy Land Claims and Aboriginal communities formed B.C.’s first War II veterans found that when they from the federal Department of Indian Protests province-wide Aboriginal political returned home after fighting overseas Affairs and the Indian Act. From an early stage of non-Aboriginal organization – the Allied Tribes of for Canada, they were no longer con- settlement, Aboriginal peoples under- British Columbia (ATBC). It seemed sidered Indians. The Indian Act specified The White Paper of 1969 stood the importance of political action evident to ATBC that their chances of that Indians absent from reserve for and protest. In 1872, a group of Coast progress were much better through four years were no longer Indians. In 1969 the government of Canada Salish chiefs rallied in front of B.C.’s litigation than through more fruitless introduced a White Paper on Indian Push for Indian Act Reform and 53 provincial land registry office to dealings with politicians and officials.52 Policy , calling for “the eventual Greater Aboriginal Control demand the enlargement of reserves. elimination of the various “privileges” In 1887, the chiefs of the Nisga’a and By 1927, the Government of Canada In recent decades there has been of Aboriginal peoples, with the Tsimshian met with B.C. Premier William had had enough, and it amended the significant pressure to address historical ultimate goal of “normalizing” their Smithe, demanding more reserve lands, Indian Act to make it illegal for Indians Indian Act issues. That pressure has integration into Canadian society. treaties, and self-government. The to retain a lawyer or raise money to been imposed by the combination of Among other things, the White Paper Premier’s views on land ownership, advance their claims to land. This increasingly organized and effective would have done away with the Indian Aboriginal title, and assimilation made provision remained in effect from 1927 political actions by various Aboriginal Act, phased out federal obligations to it clear that negotiation wasn’t likely to to 1951: denying Canada’s Aboriginal groups, and a series of Supreme Court Aboriginal peoples, and redistributed be fruitful any time soon: peoples fundamental rights enjoyed by of Canada decisions that established reserve lands based on individual “The land belongs to the Queen… every other citizen. the validity of the concepts of ownership.”54 Confronted by A reserve is given to each tribe, and unextinguished Aboriginal title and Aboriginal opposition to the White they are not required to pay for it. Aboriginal rights of self-determination. Paper from coast to coast, the federal

49 Hunter & Calihoo, OCCUPIED CANADA, Ibid, 230-231 52 That view became even stronger in 1921, when the Judicial 53 See: www.ainc-inac.gc.ca/ch/rcap/sg/sg18_e.html 14 50 Phil Fontaine, National Chief of the Assembly of First Nations, was Committee of the Privy Council (then the highest Court in the British 54 Christopher McKee, TREATY TALKS IN BRITISH COLUMBIA, Ibid, 27 15 abused in two residential schools. See: Roy MacGregor, “This Country”, Commonwealth) ruled in a Nigerian case that “Aboriginal title was a pre-existing right that must be presumed to survive, unless established The Globe and Mail, April 4, 2005, A2 otherwise by the context or the circumstances in which the right 51 Christopher McKee, TREATY TALKS IN BRITISH COLUMBIA, Ibid, 24 operated.” Ibid, 25 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

government withdrew the initiative in Section 35 neither confirms nor creates Major Court Cases: The Supreme ultimately ruled against the Nisga’a on 1971, replacing it with the “Core absolute Aboriginal rights. Before 1982, Court Leads the Way a technicality, the case is historic Funding Program” – supplying the Supreme Court had confirmed that because for the first time, Canada’s Aboriginal groups with resources to Aboriginal rights could be extinguished Introduction highest court ruled that Aboriginal title promote their causes through research, in three ways: by sale or surrender of Beginning with the ground-breaking was rooted in the “long-time publication and legal action.55 the right, by otherwise valid legislation Calder case in 1973, the Supreme Court occupation, possession and use” of that clearly and deliberately extin- of Canada has used a series of import- traditional territories. As such, Two years later came a commitment by guishes an Aboriginal right, or by ant decisions to define and explain Aboriginal title existed at the time of the Minister of Indian Affairs, Jean legislation that can only be interpreted Aboriginal rights and title in Canada. original contact with Europeans, and at Chrétien, to begin negotiations with as extinguishing an Aboriginal right. Even more important than the technical the time of formal assertion of British the Nisga’a and to begin the process of So, section 35(1)’s “existing Aboriginal rulings themselves, the Supreme Court’s sovereignty in 1846. northern treaty-making. or treaty rights” are rights that were reasoning in this line of cases has not extinguished by surrender or established the validity of the concept Shortly after the Calder decision59, the Canada’s Constitution Act legislation before 1982. of unextinguished Aboriginal title, has Canadian government agreed to begin In 1982 the Government of Canada induced both the federal and provincial negotiating with the Nisga’a on their patriated the Canadian constitution, On the other hand, Aboriginal and governments to undertake meaningful “Land Question”60, and with northern and in so doing, formally entrenched treaty rights existing after proclamation treaty-making, and has given Aboriginal Aboriginal peoples on treaties to define Aboriginal and treaty rights in the of the Constitution Act, 1982 now peoples a much strengthened opening their rights to land and resources. supreme law of Canada. receive significant legal protection position for negotiations. 61 under section 35. Existing Aboriginal Guerin , Supreme Court of Canada, 1984 Section 35 of the Constitution Act, 1982 land rights can no longer be extin- The decisions reviewed below underscore provides: guished without the consent of those the need for all levels of government to In Guerin, the judgment of Chief Justice “35(1) The existing aboriginal and Aboriginal peoples holding interests in avoid prolonged, expensive and divisive Brian Dickson extended Calder to treaty rights of the aboriginal people those lands. Aboriginal consent may legal battles: i.e. to resolve claims of describe Aboriginal interest in land as a in Canada are hereby recognized and be required to give effect to “pre-existing legal right not created by affirmed. Aboriginal title and rights through legislation purporting to extinguish the Royal Proclamation ... the Indian (2) In this Act, “Aboriginal Peoples of negotiation rather than litigation. Canada “includes the Indian, Inuit, Aboriginal land rights, even if Act...or any other executive order or and Métis Peoples of Canada. compensation is paid. Finally, Calder58, Supreme Court of legislative provision.” (3) For greater certainty, in subsection government regulation of Aboriginal Canada, 1973 (1), “treaty rights” includes rights land rights may still be possible, if In the Calder case, the Nisga’a Tribal In 1955, the Musqueam First Nation that now exist by way of land claims appropriate and meaningful Council asked the courts to support approved a surrender “in trust” of agreements or may be so acquired. consultation is undertaken with the their claim that Aboriginal title had some of its reserve land in the city of (4) Notwithstanding any other 57 Vancouver, for the purpose of a lease to provision of this act, the aboriginal affected Aboriginal communities. never been extinguished in the Nass and treaty rights referred to in Valley, near Prince Rupert. Although the Shaughnessy Golf and Country subsection (1) are guaranteed equally the Supreme Court of Canada Club. The lease transaction had been to male and female persons.”56 discussed in detail with the Band and

58 Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313 60 See: Nisga'a: People of the Mighty River, Ibid, 1 59 61 55 Supra, 27 Prime Minister Pierre Trudeau met with Frank Calder in the months Guerin v. The Queen, [1984] 2 S.C.R. 335 following the release of the historic 1973 decision of the Supreme Court 16 56 Constitution Act, 1982, being Schedule B to the Canada Act 1982 17 in the Calder case, and remarked “that the case [had] pushed him to (U.K.), 1982, c. 11. reconsider the colonialist assumptions underlying his administration's 57 ABORIGINAL ISSUES TODAY: A Legal and Business Guide, Edited policy on Aboriginal peoples and to acknowledge the possibility of by Stephen B. Smart and Michael Coyle, (North Vancouver, Self-Counsel Aboriginal self-determination, treaty rights, and self-government as key Press, 1997) 46-47 organizing principles.” McKee, TREATY TALKS IN BRITISH COLUMBIA, Ibid, 27-28 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Band consent had been given based on has] ignored it. I am not willing to Zalm appointed a Native Affairs those discussions. The Crown subse- do that.”65 Advisory Committee to consider the quently concluded a lease on terms government’s options. By the fall of substantially different and less Justice MacFarlane was even blunter in 1990, following the Mohawk blockades advantageous to the Musqueam. The calling for meaningful treaty-making at Oka and Kahnawake, and further true terms of the lease were not negotiations: Aboriginal blockades across the country disclosed to the Band until 1970. “The fact that there is an issue (particularly in Alberta and B.C.), between the Indians and the Premier Vander Zalm announced that province based on Aboriginal claims The Supreme Court ruled that the his government would commence should not come as a surprise to federal government had a “fiduciary anyone. Those claims have been negotiations with B.C.’s Aboriginal and responsibility” for Aboriginal people – advanced by the Indians for many First Nations (still without that is, a responsibility to safeguard years. They were advanced in [the acknowledging Aboriginal title).68 protesters claimed that allowing Aboriginal interests. This duty placed Calder case] and half the court logging on Meares Island interfered 69 the government under a legal obliga- thought they had some substance … Sparrow , Supreme Court of with Aboriginal title. A court injunction I think it is fair to say that, in the tion to manage Aboriginal lands as a Canada, 1990 was sought to halt MacMillan Bloedel’s end, the public anticipates that the prudent person would when dealing In the Sparrow case, a member of the operations until the claim was resolved. claims will be resolved by negoti- with his/her own property. The Court ations and by settlement. This Musqueam First Nation appealed his held the government had breached this conviction on a charge of fishing with The B.C. Supreme Court denied the judicial proceeding is but a small fiduciary duty and awarded damages of part of the whole process which a longer drift net than permitted by the request, but the B.C. Court of Appeal $10 million to the Musqueam.62 will ultimately find its solutions in a terms of the Band’s fishing license under (which does not usually grant leave to reasonable exchange between gov- the Fisheries Act. He based his appeal 64 hear appeals in such injunction cases) ernments and the Indian nations.”66 The Guerin ruling is significant because on the argument that the restriction on agreed to hear the application. In it recognized pre-existing Aboriginal net length was invalid because it was granting the injunction in a three to two The Martin (Meares Island) case was rights both on and off-reserve. inconsistent with Section 35 of the decision, two judgements for the majority adjourned by agreement of the Nuu- Constitution Act, 1982 – the section of gave some pointed feedback to the 63 chah-nulth First Nation, MacMillan Martin , Supreme Court & Court the Act that recognizes and affirms of Appeal of British Columbia, provincial Crown. Justice Seaton said: Bloedel, and the governments of British “It has … been suggested that a existing Aboriginal and treaty rights. 1985 - ongoing (the Meares Columbia and Canada. The injunction decision favourable to the Indians on logging is still in effect and none of Island Case) will cast a huge doubt on the tenure The Sparrow case was the first In 1984, the Nuu-chah-nulth people and that is the basis for the huge the parties has requested resumption of opportunity for the Supreme Court of Martin, B.C.’s other protesters blocked MacMillan investment that has been made and the trial. As a result of Canada to interpret what Section 35 is being made... There is a problem provincial Ministry of Native Affairs was Bloedel’s access to its timber berth on actually meant. In overturning about tenure that has not been created in 1988.67 By 1989, public Meares Island. The Province of British Sparrow’s conviction, the Court ruled attended to in the past. We are support for the government’s entry into Columbia regarded the vast majority of being asked to ignore the problem as that the Constitution Act provides “a treaty negotiations had reached 80 per the island as Crown land, but the [the province of British Columbia strong measure of protection” for edit Premier Vander cent, and Social Cr Aboriginal rights, and that any

62 “Many First Nations that have received less than fair market value Coyle, ABORIGINAL ISSUES TODAY, Ibid, 45 have since filed claims for compensation from the Crown. Other First 63 MacMillan Bloedel Ltd. v. Mullin; Martin v. R. in Right of B.C. Nations have surrendered lands to the Crown for sale; the lands have not [1985], 61 B.C.L.R. 145, (B.C.C.A.). 65 Martin, Ibid, 160 (BCCA) 68 Christopher McKee, TREATY TALKS IN BRITISH COLUMBIA, Ibid, 30 been sold by the Crown, leaving these First Nations without 64 66 69 18 compensation. These lands are treated as provincial Crown lands, The key issue for the Nuu-chah-nulth was their desire to preserve Supra, 172-173 R. v. Sparrow [1990] S.C.R. 1075. 19 evidence of their historic use of the natural resources of the area - they because under Canadian law, the surrender gave full ownership to the 67 Frank Calder was named B.C.'s Minister of Native Affairs, becoming argued that clear-cut logging would erase that evidence. province. The principles set out in the Guerin decision are frequently Canada's first Aboriginal cabinet minister. See: relied on to support claims for the return of these lands.” Smart and www.nisgaalisims.ca/pdf/June04ExecSummary.pdf MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

proposed government regulations management of resources proceedings) regarding the nature and Supreme Court handed down its that infringe on the exercise of those • After conservation goals are met, duration of their use and occupation of landmark Delgamuukw ruling, pro- rights must be constitutionally justified. Aboriginal people must be given their traditional lands. Counsel for the viding some important definition and priority to fish for food over other The two-part Sparrow test for Gitxsan and Wet’suwet’en presented a description of Aboriginal title, con- user groups. determining whether an infringement legal argument that has been described firming the legal validity of Aboriginal can be justified is: as “the most extensive ever mounted in oral history, and clarifying the nature of Delgamuukw72, B.C. Supreme i) the government must be acting an Indigenous rights case.”74 the Crown’s duties of consultation and Court & Court of Appeal, pursuant to a valid legislative object; accommodation in the context of ii) and the government’s actions must Supreme Court of Canada, In his Reasons for Judgment released in infringement of Aboriginal rights. be consistent with its fiduciary duty 1984-1997 1991, Chief Justice McEachern left open toward Aboriginal peoples. the possibility that Aboriginal rights may Aboriginal Title The Delgamuukw cases are critical arise through the use and occupation of Chief Justice Lamer’s judgment for the If a valid legislative object is established, pieces of the constitutional puzzle of specific lands for Aboriginal purposes for Court provided the most comprehensive assessment of whether the government’s Aboriginal rights and title for British Supreme Court description of Aboriginal an indefinite (and lengthy) period prior to actions are consistent with that Columbia and all of Canada. Together, title seen to date: British sovereignty. However, he ruled fiduciary duty between the Crown and the three Delgamuukw decisions “[A]boriginal title encompasses the that in any event the Crown had Aboriginal peoples requires that three summarized below raise a number of right to exclusive use and occupation extinguished any such Aboriginal rights questions be addressed: important issues addressed in the of the land held pursuant to that by its imposition of complete dominion i) Has there been as “little recently released Supreme Court of title. (at para. 117) What aboriginal infringement as possible” in order over the Colonial territory prior to joining title confers in the right to the land Canada decision in Haida Nation73, and to achieve the intended result? Confederation in 1871.75 The Gitxsan and itself. (at para. 138) [A]boriginal title provide a good foundation for our ii) In a case of expropriation, has Wet’suwet’en appealed. encompasses the right to exclusive fair compensation been paid? review of that case. use and occupation of land; second, iii) Has the particular Aboriginal In 1993, the B.C. Court of Appeal reversed aboriginal title encompasses the right People been consulted?70 In 1984, 35 Gitxsan and 13 Wet’suwet’en to choose to what uses land can be much of the lower court’s decision and Hereditary Chiefs asked the Supreme put, subject to the ultimate limit that ruled instead that the Gitxsan and The Sparrow justification test applies Court of British Columbia to recognize those uses cannot destroy the ability Wet’suwet’en peoples do have “unex- beyond Aboriginal rights, to include their ownership of 57,000 square of the land to sustain future tinguished non-exclusive Aboriginal rights, treaty rights and Aboriginal title as well.71 kilometres of land in north-western generations of aboriginal people; other than a right of ownership,” to much and third, that lands held pursuant to B.C., to confirm their right to govern of their traditional territory. In addition, aboriginal title have an inescapable The Sparrow Court further ruled that: their traditional territories, and to award the appeal court Justices strongly economic component.” (at para. 166, • Aboriginal and treaty rights are compensation for loss of their lands and recommended that the scope and content emphasis in original) capable of evolving over time and resources. The Gitxsan and Wet’suwet’en must be interpreted in a generous and of those rights would best be defined elected to proceed with trial by judge liberal manner through negotiation rather than Justice Lamer pointedly outlined the alone (rather than by judge and jury) • Governments may regulate existing litigation. British Columbia appealed to double-edged implication of that and submitted an enormous body of Aboriginal rights only for a the Supreme Court of Canada. “inescapable economic component”: compelling and substantial objective, oral and written evidence (the Court On December 11, 1997, a unanimous on the one hand, it means that the such as the conservation and transcript covered 369 days of

70 Sparrow, Ibid, 1119 72 Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010 74 Michael Jackson, A Legal Overview - The Case in Context, in 75 See: Christopher McKee, TREATY TALKS IN BRITISH COLUMBIA, 20 71 For a good summary and analysis of Sparrow and related cases, see: 73 Haida Nation v. British Columbia (Minister of Forests, Neutral “COLONIALISM ON TRIAL: Indigenous Rights and the Gitksan and Ibid, 30-31 21 Charles F. Willms and Alison Kearns (articled student), The Haida Nation Citation: 2004 SCC 73 Wet'suwet'en Sovereignty Case”, Don Monet and Skanu'u (Ardythe v. Weyerhaeuser: Upcoming Supreme Court Decision and Its Wilson), (Philadelphia/Gabriola Island: New Society Publishers, 1992), x Implications for Aboriginal-Energy Partnerships and Joint Ventures, (FASKEN MARTINEAU) www.fasken.com MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

need to develop natural resources can, Oral History In elaborating on the implication and in principle, justify infringement of In a significant clarification of the weight of that special fiduciary duty of 76 Aboriginal title by the Province Canadian law of evidence, Chief Justice the Crown to look after the best (raising the duty to consult and Lamer ruled that the trial judge erred interests of Aboriginal peoples, the accommodate); on the other hand, it in refusing to take into account the Supreme Court also addressed the issue means that an Aboriginal group can Aboriginal oral histories presented of consultation: “The fiduciary duty between the choose economic uses for its land that to the court by the Gitxsan and Crown and Aboriginal Peoples may are not confined to its culture or Wet’suwet’en to establish use and be satisfied by the involvement of historical practices.77 occupation of their traditional Aboriginal peoples in decisions taken territories, and concluded: with respect to their lands. There is The Court then set out three compo- “The trial judge’s treatment of the always a duty of consultation. Whether nents as the basis for a successful claim various kinds of oral histories did not the Aboriginal group has been con- The Court went further to note that the of Aboriginal title: satisfy the principles I laid down in sulted is relevant in determining • The land must have been occupied “inescapable economic component” of Van der Peet … The trial judge, after whether the infringement of Aboriginal prior to European sovereignty (in Aboriginal title referred to earlier means refusing to admit, or giving no title is justified … The nature and British Columbia, that was 1846); that compensation will be required when independent weight to these oral scope of the duty of consultation will • If the proof of pre-sovereignty histories, reached the conclusion that vary with the circumstances. In that title is infringed. The amount and occupation to be relied upon is the appellants had not demonstrated occasional cases, when the breach is nature of the compensation required will ‘current possession’, then there must the requisite degree of occupation less serious or relatively minor, it will depend on the context – i.e. on “… the be continuity between pre-sovereignty for “ownership”. Had the trial judge be no more than a duty to discuss nature of the Aboriginal title affected, the and present occupation; and assessed the oral histories correctly, important decisions that will be • At the time that European sover- severity of the infringement, and the his conclusions on these issues of fact taken with respect to lands held eignty was established, Aboriginal extent to which Aboriginal interests have might have been very different.” pursuant to Aboriginal title … The occupation must have been exclusive, been accommodated.”82 (at Para. 107)79 minimum acceptable standard is or with provision for shared exclusivity.78 consultation [that] must be in good Infringement of Aboriginal faith, and with the intention of The Court stated that Aboriginal title Rights and the Crown Duty of substantially addressing the concerns cannot be surrendered to the Province: Consultation of the Aboriginal peoples whose where it has not been surrendered to lands are at issue. In most cases, it The Court confirmed its ruling in will be significantly deeper than or otherwise extinguished by the 80 Sparrow that Aboriginal title is not mere consultation. Some cases may federal government, it remains an absolute and may be infringed upon by even require the full consent of an encumbrance on Provincial Crown title. both federal and provincial governments, Aboriginal nation, particularly when provided that the two-part Sparrow provinces enact hunting and fishing justification test is met (see page 20). regulations in relation to aboriginal lands.” 81

76 For discussion see: Willms and Kearns, The Haida Nation v. 79 The Gitxsan First Nation rightly attach great significance to this oral Weyerhaeuser, Ibid, 2 history ruling, as they argue, “This is an important ruling for future Delgamuukw action, and for all future First Nation court cases, in that 77 See: McKee, TREATY TALKS IN BRITISH COLUMBIA, Ibid, 89 “The oral history will now be given as much weight as written evidence.” See: judgment pointed out mining, lumbering, and oil and gas extraction as www.gitxsan.com/html/delga.html/delgamuukw/oralhistory and see also possible land-related activities that can be pursued by Native peoples on Delgamuukw, Ibid at Para 87: “Notwithstanding the challenges created their Aboriginal lands. However, the Court made it clear that this right to 81 by the use of oral histories as proof of historical facts, the laws of Delgamuukw, Ibid, para. 168 For a good analysis of “The Scope of choose the uses of the land should be consistent with the Aboriginal evidence must be adapted in order that this type of evidence can be Constitutional Protection of Aboriginal Title”, see: McKee, TREATY group's attachment to the area. For example, if hunting practices were accommodated and placed on an equal footing with the types of TALKS IN BRITISH COLUMBIA, Ibid, 90-91 22 shown to be evidence of attachment to or occupation of land claimed as 23 historical evidence that courts are familiar with, which largely consists of 82 Delgamuukw, Ibid, para. 169, McKee, Supra, 91 Aboriginal title land, the relevant Native group could not strip-mine the historical documents.” area.” 80 R. v. Sparrow, [1990] 1 S.C.R 1075 78 Ibid. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Haida Nation v. British Columbia reasonable possibility that the Haida ation was being given to the renewal While the Supreme Court of Canada’s (Minister of Forests)83 and Taku will be able to establish Aboriginal title of Tree Farm Licence 39 and Block 6. decision in Delgamuukw confirmed the River Tlingit First Nation v. British to at least some parts of the coastal and The obligation extended to both the validity and importance of Aboriginal cultural and economic interests of the Columbia84, Court of Appeal of inland areas of Haida Gwaii as well as title and set out strong principles to Haida people. Similar obligations had an Aboriginal right to harvest red cedar govern Crown infringement on British Columbia and Supreme existed much earlier and had Court of Canada, 2002-2004 trees from the various old-growth continued through until 1999 and Aboriginal title, widespread uncertainty forests on Haida Gwaii.” 2000 and on to the present time.”85 was raised by the broad sweep of its On November 18, 2004, the Supreme language on the nature and various Court of Canada handed down its The duty to consult was found to derive The B.C. Court of Appeal’s Haida Nation duties of consultation. eagerly awaited decisions in these from the ‘trustee and beneficiary’ ruling followed its January 31, 2002 companion cases. Both were appeals relationship between the Crown and decision in Taku River Tlingit.86 The The B.C. Court of Appeal decisions in from the British Columbia Court of First Nations, created when a First Taku River Tlingit First Nation had Haida Nation and Taku River Tlingit Appeal, which had confirmed that the Nation asserts title through entering environmental concerns about the turned that uncertainty into outright provincial government must properly the treaty process, and continuing until proposed reopening of the Tulsequah confusion (both for the Crown and for consult with and accommodate the after a treaty is signed or Aboriginal Chief Mine in Northwest B.C., which industry), regarding the source of the interests of First Nations before taking rights and title are defined through the would require the construction of a duty to consult (i.e. the Sparrow test for or allowing actions that may infringe courts. The Court of Appeal ruled that 160-kilometre access road through one justifying infringement on Aboriginal on Aboriginal title or rights. the nature and extent of that duty to of the largest and most pristine water- title and rights, or trust law, or other- consult depends on the strength of the sheds in the province. They petitioned wise), and regarding the determination In February 2002, the British Columbia First Nation’s connection to the land, the B.C. Supreme Court to set aside the of when that duty arises, what exactly Court of Appeal had ruled unanimously and concluded that the Haida Nation Project Approval Certificate (PAC) must be done to satisfy it, and who that the Crown Provincial and had a potentially strong legal claim to approving the development. The owes the duty. All levels of govern- Weyerhaeuser Company Limited did Aboriginal rights and title. chambers judge ruled that the provincial ment, Aboriginal communities, and not properly consult the Council of the ministers who had granted the PAC industry hoped that the Supreme Court Haida Nation when renewing a tree The Court went on to make the should have been mindful that their would provide clarity and direction in farm licence on Haida Gwaii (Queen unprecedented ruling that private decision might infringe on Aboriginal its treatment of the both the Haida Charlotte Islands). Tree Farm Licence parties whose activities potentially rights, and that they hadn’t been care- Nation and Taku River Tlingit cases. 39, issued to Weyerhaeuser, contains interfere with or infringe upon ful enough in the final months of the several areas of old growth red cedar – Aboriginal rights owe obligations to environmental assessment process to a culturally significant tree used for totem consult with affected Aboriginal ensure that the substance of the Taku poles, canoes, and log houses. The Haida peoples, concluding that: River Tlingit’s concerns were addressed. “Both the Crown Provincial and Nation wanted large areas of old growth The majority of the Court of Appeal Weyerhaeuser had an obligation to forest protected from clear cutting and upheld that ruling, finding that the consult the Haida people in 1999 and Province had failed to meet its duty to its potential detrimental effects on 2000 about accommodating the land, watersheds, fish, and wildlife. aboriginal title and aboriginal rights consult with and to accommodate the The appeal court held that “there is a of the Haida people when consider- Taku River Tlingit First Nation.

83 Haida Nation v. British Columbia (Minster of Forests), (2002), 5 85 Willms and Kearns, The Haida Nation v Weyerhaeuser, Ibid, 8-9. aside the Province's granting of the Environmental Assessment Certificate 24 B.C.L.R. (4th) 33, 2002 BCCA 462, 2004 SCC 73 Note that Charles F. Willms acted as counsel in both these Supreme Court was brought on grounds of administrative law and on its Aboriginal rights 25 and title - not on the issues of consultation or accommodation. 84 Taku River Tlingit First Nation v. British Columbia (Project of Canada cases. Assessment Director), (2002), 98 B.C.L.R. (3d) 16, 2002 BCCA 59, 2004 86 It is noteworthy that the Taku River Tlingit had participated in the SCC 74 provincial environmental assessment process, and that their petition to set MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Haida Nation – Supreme Court of Source of the Duty When the Duty to Consult Arises While this process of “reconciliation and honour” may be a fine moral and Canada, November 18, 2004 “The government’s duty to consult with The Province presented its traditional legal starting point, let’s cut to the By a unanimous (7-0) decision delivered Aboriginal peoples and accommodate argument that any duty of consultation or accommodation that it might have practical problem: by Chief Justice McLachlin, the Supreme their interests is grounded in the does not arise unless and until a claim “But, when precisely does a duty to Court of Canada went a long way honour of the Crown. The honour of of Aboriginal title or rights is proven. consult arise? The foundation of the toward providing that clarity and the Crown is always at stake in its The Court flatly rejected that view: duty in the Crown’s honour and the direction. The strongly worded judg- dealing with Aboriginal peoples ... The “[T]he duty to consult and goal of reconciliation, suggest that ment makes two issues very clear. First, historical roots of the principle of the accommodate is part of the process the duty arises when the Crown has knowledge, real or constructive, of both orders of government have an honour of the Crown suggest that it of fair dealing and reconciliation that the potential existence of the inescapable constitutional duty to must be understood generously in begins with the assertion of sover- eignty and continues beyond formal Aboriginal right or title and contem- consult and accommodate Aboriginal order to reflect the underlying realities claims resolution. Reconciliation is plates conduct that might adversely communities, in a manner that is mean- from which it stems. In all its dealings 89 not a final legal remedy in the usual affect it.” ingful, timely and reflective of the with Aboriginal peoples, from the asser- sense. Rather, it is a process flowing “honour of the Crown”, regarding poten- tion of sovereignty to the resolution of from the rights guaranteed by Scope and Content of the Duty tial infringement on an Aboriginal right claims and the implementation of s. 35(1) of the Constitution Act, 1982. to Consult and Accommodate or title. Second, that duty rests with treaties, the Crown must act hon- This process of reconciliation flows If the duty arises before a claim of the Crown; it cannot be delegated to ourably. Nothing less is required if we from the Crown’s assertion of Aboriginal title or rights is proven, how sovereignty over an Aboriginal and does not otherwise extend to third are to achieve “the reconciliation of the is the Crown (and industry, as a matter people and de facto control of land parties (i.e. to industry). pre-existence of Aboriginal societies of good business relations) to know and resources that were formally in with the sovereignty of the Crown.” the control of that people … To limit what range and depth of consultation The Crown’s Duty to Consult and (Delgamuukw at para. 186)”87 reconciliation to the post-proof (and perhaps accommodation) is Accommodate sphere risks treating reconciliation as appropriate? The Court’s thorough and clear These opening statements from the a distant legalistic goal, devoid of the “[I]t will frequently be possible explanation of the source, nature, and Court’s analysis of the “source of a duty “meaningful content” mandated by to reach an idea of the asserted the “solemn commitment” made by rights and of their strength sufficient object of the duties of consultation and to consult and accommodate” cut to the Crown in recognizing and to trigger an obligation to consult accommodation is more than just a the heart of the matter. Ultimately, affirming Aboriginal rights and title and accommodate, short of final stern message to the Government of that “reconciliation of the pre-existence … It also risks unfortunate judicial determination or settlement. British Columbia; it also provides of Aboriginal societies with the sover- consequences. When the distant To facilitate this determination, valuable guidance to both industry and eignty of the Crown” has to be found goal of proof is finally reached, the claimants should outline their claims Aboriginal leadership for successful before the legacy of expropriation and Aboriginal peoples may find their with clarity, focussing on the scope engagement. Going to the heart of the assimilation can be put behind us, and land and resources changed and and nature of the Aboriginal rights denuded. This is not reconciliation. they assert and on the alleged purpose of this Guidebook, Chief before lasting business certainty can be Nor is it honourable.” 88 infringements … Justice McLachlin’s judgment in Haida achieved in British Columbia. Nation deserves to be reviewed with care here.

87 Supra, paras. 16-17 88 Supra, paras. 32-34 26 89 Supra, para. 35 27 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

There is a distinction between “At all stages, good faith on both ment’s proposed decision may by the Aboriginal group … The Crown knowledge sufficient to trigger a sides is required. The common adversely affect it in a significant alone remains legally responsible for duty to consult and, if appropriate, thread on the Crown’s part must be way, addressing the Aboriginal the consequences of its actions and accommodate, and the content or “the intention of substantially concerns that may require taking interactions with third parties, that scope of the duty in a particular case. addressing [Aboriginal] concerns” as steps to avoid irreparable harm or to affect Aboriginal interests. The Crown The content of the duty, however, they are raised (Delgamuukw at minimize the effects of infringement, may delegate procedural aspects of varies with the circumstances … para. 168), through a meaningful pending final resolution of the consultation to industry proponents A dubious or peripheral claim may process of consultation. As for underlying claim … Accommodation seeking a particular development; this attract a mere duty of notice, while a Aboriginal claimants, they must not is achieved through consultation. not infrequently done in environmental stronger claim may attract more frustrate the Crown’s reasonable assessments. Similarly, the terms of stringent duties … Parties can assess good faith attempts, nor should they The process does not give Aboriginal T.F.L. 39 mandated Weyerhaeuser to these matters, and if they cannot take unreasonable positions to groups a veto over what can be done specify measures that it would take to agree, tribunals and courts can assist. thwart government from making with land pending final proof of the identify and consult with ‘aboriginal Difficulties associated with the decisions or acting in cases where, claim. The Aboriginal “consent” people claiming an aboriginal interest absence of proof and definition of despite meaningful consultation, spoken of in Delgamuukw is appro- in or to the area‘ (Tree Farm Licence No. claims are addressed by assigning agreement is not reached … priate only in cases of established 39, Haida Tree Farm Licence, para. appropriate content to the duty, not rights, and then by no means in every 2.09(g)(ii)). However, the ultimate legal by denying the existence of the The controlling question in all case. Rather, what is required is a responsibility for consultation and duty.”90 situations is what is required to process of balancing interests, of give accommodation rests with the Crown. maintain the honour of the Crown and take.”92 The honour of the Crown cannot be 93 In essence, the Supreme Court has ruled and to effect reconciliation between delegated.” Who Owes the Duty? that the Crown’s duty to consult and the Crown and the Aboriginal peoples with respect to the interests Industry Still Has Legal accommodate regarding potential The Supreme Court determined that at stake. Pending settlement, the Responsibility for Its Actions infringement on claims of Aboriginal the Crown must bear sole responsibility Crown is bound by its honour to for consultation and accommodation It is important to note that this decision title and rights is proportionate – to the balance societal and Aboriginal leaves industry and other third parties strength of the particular claim and to interests in making decisions that regarding the possibility of infringe- fully accountable for their own actions in the potential harm that may be caused may affect Aboriginal claims. The ment of Aboriginal title or rights by its dealing with Aboriginal title and rights: to that claim by the proposed policy or Crown may be required to make actions, or by actions performed under “The fact that third parties are under action. decisions in the face of disagreement its licence. Rejecting the trust law no duty to consult or accommodate as to the adequacy of its response to analysis that had been used by the B.C. Aboriginal concerns. Balance and Aboriginal concerns does not mean “Accommodation”: Meaning and Court of Appeal to impose the duty of compromise will then be necessary.”91 that they can never be accountable to Mutual Responsibility consultation on Weyerhaeuser, Chief Aboriginal peoples. If they act neg- The Supreme Court also provided Justice McLachlin focused once again ligently in circumstances where they The issue of “accommodation” flows valuable clarification of the working on “sovereignty” and “the honour of owe Aboriginal peoples a duty of care, from the practice of good faith consult- meaning of “accommodation”, and set the Crown”: or if they breach contracts with ation, which in certain circumstances Aboriginal peoples or deal with them out some pointed advice clearly “[T]he duty to consult and may reveal a duty to accommodate: accommodate … flows from the dishonestly, they may be held legally intended for both government and “Where a strong prima facie [at first Crown’s assumption of sovereignty liable.”94 Aboriginal leaders: sight] case exists for the claim, and over lands and resources formerly held the consequences of the govern-

90 Supra, paras. 36-37 92 Supra, para. 47-48 28 91 Supra, paras. 42-46 93 Supra, para. 53 29 94 Supra, para 56 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

While the Court did not spell out the permit or license quashed. Can you Aboriginal claims … Treaties serve to Taku River Tlingit – Supreme “circumstances where third parties may take that risk? We can enter into a new reconcile pre-existing Aboriginal Court of Canada sovereignty with assumed Crown owe Aboriginal peoples a duty of care”, era of doing business in BC based on In this companion case to Haida Nation, sovereignty, and to define Aboriginal the clarity of this Supreme Court good relations, by working with First rights guaranteed by s. 35 of the the Court’s unanimous (7-0) decision definition of the depth and scope of Nations to protect what is important to Constitution Act, 1982. Section 35 was also written by Chief Justice 96 the Crown’s duty to consult and to them and still doing smart business.” represents a promise of rights recog- McLachlin. Applying Haida Nation, the accommodate will certainly inform third nition, and “[i]t is always assumed that Court ruled that the Crown owed a The Province’s Duty to Consult, parties’ duty of care. ‘Foreseeability’ of the Crown intends to fulfill its pro- duty to consult meaningfully with the Accommodate, and Negotiate mises” (Badger, at para. 41). This the harm that may be caused by one’s Taku River Tlingit First Nation (TRTFN) British Columbia’s argument that any promise is realized and sovereignty actions to someone owed a duty of care regarding the decision to re-open the claims reconciled through the process goes to the heart of liability in the law duty to consult or accommodate be- of honourable negotiation … Tulsequah Chief Mine, and to permit longs solely to the federal government of negligence. “Consultation and Redfern Resources Ltd. (the mine was dismissed summarily by the Court: accommodation” remains prudent Put simply, Canada’s Aboriginal operator) to build a 160 kilometre “[T]he Province took [its] interest in business practice in situations where peoples were here when the access road through a portion of their the land subject to “any interest Aboriginal title or rights (whether Europeans came, and were never traditional territory. However, the other than that of the Province in the conquered. Many bands reconciled claimed or confirmed) may be infringed Chief Justice also found that duty of same.” The duty to consult and accom- their claims with the sovereignty of upon by business decisions or actions. consultation to have been satisfied by modate here at issue is grounded in the the Crown through negotiated assertion of Crown sovereignty which treaties. Others, notably in British the nature and extent of the TRTFN’s As Anne Giardidi, Weyerhaeuser pre-dated the Union. It follows that the Columbia, have yet to do so. The involvement in the three and a half Province took the lands subject to this Assistant General Counsel, observes, potential rights embedded in these year review process conducted under duty. It cannot therefore claim that “I don’t see this as a ‘get out of jail free claims are protected by s. 35 … The B.C.’s Environmental Assessment Act: s. 35 [of the Constitution Act, 1982] pass’ for business at all. When it is your honour of the Crown requires that “Within the terms of the process deprives it of powers it would other- project, your business, your daily activity, these rights be determined, recognized provided for project approval wise have enjoyed.”97 you are going to want to ensure that and respected. This, in turn, requires certification under the Act, TRTFN’s the Crown, acting honourably, to what the Supreme Court of Canada is concerns were adequately accommo- Throughout the Haida Nation judgment participate in processes of negotiation dated. In addition to the discussion saying gets done.”95 And, Judith are powerful statements linking the … Honourable negotiation implies a in the minority report, the majority Sayers, Chief Councillor of Hupacasath Province’s duty to consult and duty to consult with Aboriginal report thoroughly identified the First Nation, gives industry this piece of claimants and conclude an honourable accommodate with its parallel duty to TRTFN’s concerns and recommended good advice: agreement reflecting the claimants’ negotiate treaties “with honour and mitigation strategies, which were inherent rights.”99 adopted into the terms and integrity, avoiding even the appearance of “Third parties may not have a legal conditions of certification. These “sharp dealing”” (Badger, at para. 41):98 mitigation strategies included further duty to consult First Nations, but it sure “The honour of the Crown also infuses directions to Redfern to develop makes good business sense. If the processes of treaty making and baseline information, and recom- consultation isn’t done properly, a First treaty interpretation …Where treaties mendations regarding future man- remain to be negotiated, the honour Nation could go to court for judicial agement and closure of the road. review of the decision and have the of the Crown requires negotiations leading to a just settlement of

95 Anne Giardini, Assistant General Counsel of Weyerhaeuser Company 98 Supra, para. 19 99 Supra, paras. 19-26 30 Limited, in Peter Kennedy's “B.C. companies laud top court's rulings 31 on native consultation”, The Globe and Mail, November 19, 2004, B3 96 Dr. Judith Sayers, Post Haida, Unpublished Article, November, 2004 97 Haida Nation, Ibid, para. 59 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Project approval certification is simply First, the Crown cannot delegate its ABORIGINAL POPULATION 3.3% Aboriginal one stage in the process by which a constitutional duty to consult and Origin development moves forward. In Haida, accommodate regarding potential Pre-Contact the Province argued that although no infringement of Aboriginal rights and 96.7% Non-Aboriginal consultation occurred at all at the Until recently, the accepted estimate of Origin title, whether claimed or proven. disputed, strategic level, opportunities the pre-contact Aboriginal population existed for Haida input at a future Second, the Crown duty to consult and in British Columbia was less than “operational” level. That can be dis- accommodate does not relieve industry 100,000. The Census of 1871 registered tinguished from the situation in this of legal responsibility for its actions. 103 102,358 Aboriginal people. This low Canadians reported Aboriginal origins. case, in which the TRTFN was consulted Third, all parties should be reasonable, number resulted in part from failure to Aboriginal People106 account for 3.3 per throughout the certification process and should be prepared to negotiate. recognize the extent of early post- and its concerns accommodated.”100 cent of Canada’s total population. Aboriginal interests should not inter- contact epidemics, and in part from the pret their right to consultation and 104 First Nations in British Columbia We hope that our readers recognize the scarcity of archaeological research. accommodation as a veto. and Canada clarity, force and fairness of the More recent estimates put B.C.’s pre- The distribution of Canada’s First Supreme Court’s decisions in Haida contact Aboriginal population between Nation population by province and Nation and Taku River Tlingit. We also Finally, industry should be wary about 250,000 and 400,000. territory shows that British Columbia hope that our review of the line of key relying on government to conduct First Nations make up 20.4 per cent of Supreme Court rulings on Aboriginal Aboriginal consultation and accom- 2001 Census Canada’s Status Indians. These are title and rights, going back to Calder, modation on its behalf.102 Herb George, According to the 2001 Canada Census, Aboriginal People who are registered as has illustrated the legal foundation Chair of the First Nations Governance there were over 170,000 Aboriginal “Indians” and have rights and benefits built by the Court for the Crown’s Centre, closed a recent presentation at People living in British Columbia. as specified under the Indian Act.107 ‘triple-decker’ duty of consultation, “THE ABORIGINAL ENGAGEMENT & B.C.’s Aboriginal population has been accommodation and negotiation. That Where do Aboriginal People SUSTAINABILITY CONFERENCE - increasing at a greater rate than the rest foundation is: Aboriginal title and reside? Building Sustainable Relationships” of the provincial population. Be advised rights claims forming the subject of In the 2001 Canada Census, 49 per cent (Vancouver: February 8-9, 2005) with that there are always at least two litigation and treaty negotiations must of the population who identified them- this advice to industry: troublesome issues when working with be respected and protected by both the selves as Aboriginal People lived in “Don’t rely on government to consult statistics. The first is how statistics federal and provincial levels of urban areas. It should also be noted for you. For the same reasons that government, while such litigation and should be interpreted. The second issue that 68 per cent of the Métis popu- compelled the Supreme Court to treaty negotiations are pending.101 revolves around the accuracy of the lation lived in urban areas. In British spell out in Haida Nation that numbers. There are many different ways Columbia, Status Indians are the main government cannot delegate its Haida Nation Implications of defining and measuring Aboriginal group of Aboriginal People who have a duties of Aboriginal consultation In closing our discussion of this subject, population in Canada. Different land base defined in the Indian Act as a and accommodation to industry, we note that the Supreme Court’s agencies have different numbers. “reserve”.108 you should be very reluctant to Haida Nation decision presents several According to the 2001 Canada delegate conduct of your Aboriginal important implications for both the Census105, 976,305 of 29,639,035 business interests to government.” mining and Aboriginal communities.

100 Taku River Tlingit, Ibid, paras. 44-45 The Crown's Duty to Consult and Accommodate Aboriginal People: The Supreme Court of Canada's Decisions in Haida Nation v. B.C. 101 For two clear and concise commentaries by leading legal and Weyerhaeuser and Taku River Tlingit First Nation v. B.C., in 103 Source: Statistics Canada, www.statcan.ca pursuant to this Act is registered as an Indian or is entitled to be practitioners in the field of Aboriginal rights and title, see: Charles F. “Legal Update”, Vancouver: McCarthy Tetrault's Aboriginal Law Group, 104 registered as an Indian. Willms and Kevin O'Callaghan, The Supreme Court of Canada Paul Tennant, Aboriginal Peoples and Politics, (Vancouver: UBC January, 2005, www.mccarthy.ca 108 Reserve as defined by the Indian Act, Ibid. - (a) means a tract of 32 Decisions in Haida and Taku: The Final Word on the Duty to Press, 1990) 33 For the perspective of the Haida Nation's legal counsel on the Haida land, the legal title to which is vested in Her Majesty, that has been set Consult, in “Aboriginal Bulletin”, Vancouver: Fasken Martineau, 105 decision, see: www.eaglelaw.org/newsandevents/pr11182004 Statistical information can be found at www.statcan.ca . apart by Her Majesty for the use and benefit of a band, and (b) except in November, 2004, www.fasken.com/web/fmdwebsite.nsf/AllDoc/ 102 106 “Aboriginal People” is a broad term, generally used inclusively in subsection 18(2), sections 20 to 25, 28, 36 to 38, 42, 44, 46, 48 to 51, 3A6AEB410DC8492185256F5000717B9F/$File/BULLETIN_ABORIGINAL_ See the comment by Chief Judith Sayers of the Hupacasath First Canada to embrace Status Indians, Non-Status Indians, Métis and Inuit. 58 to 60 and the regulations made under any of those provisions, NOVEMBER_2004.PDF!OpenElement ; and Tom Isaac and Tony Knox, Nation on page 30. 107 Indian as defined by the Indian Act, Ibid - means a person who includes designated lands. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

STATUS INDIANS IN B.C. AND REST OF CANADA British Columbia Bands ABORIGINAL PEOPLE: 29% Canada (650) 20.4% Status Indians The 197 British Columbia First Nation YESTERDAY AND TODAY in B.C. Bands make up about 33 per cent of the 605 bands in Canada. 71% British Columbia Linguistic Diversity (1,613) 79.6% Status Indians Within British Columbia lie parts of in Rest of Canada three of the ten commonly recognized 32.8% B.C. First Nations Bands Area of British Columbia North American Aboriginal “culture (197 Bands) Reserves areas” that flourished from the six- British Columbia’s Status and Non- 67.2% Remainder of It is also noteworthy that the area teenth through the early nineteenth Status Indians make up about 4.1 per Canada cent of the total provincial population occupied by First Nation Reserves in century – the Northwest Coast, the 111 (170,025 of 4,141,272, in the 2001 Census). British Columbia (343,741 hectares) Interior Plateau, and the Subarctic. A “band” is a group of people that accounts for only 13 per cent of the The Northwest Coast was the most About one-fifth of British Columbia’s holds reserve land, has funds held for it total area of Canadian reserves densely populated area, followed by the Aboriginal population is made up of by the federal government, or has been (2,684,448 hectares). Interior Plateau and then the Subarctic. Non-Status Indians. These are people declared a band by the Governor-in- who are not registered under the Council.109 A band may hold reserve 13% B.C. Reserves Clearly defined geographic boundaries Indian Act. They are not members of 343,741 hectares bands and are not entitled to the rights lands with or without habitation for and the abundance of fish, wildlife and traditional use. O’Neill points out that natural resources allowed many of and benefits specified in the Indian Act. 87% Canadian Reserves Some Non-Status Indians had their confusion can arise from the often 2,684,448 hectares B.C.’s Aboriginal communities to status reinstated with the passage of interchangeable use of the terms develop distinct, thriving cultures and Bill C-31 (an amendment to the Indian “band” and “First Nation.”110 languages. It is believed that as many as Act) in 1985. fifty distinct Aboriginal languages were Reserves British Columbia Reserve Land being spoken in British Columbia at the BRITISH COLUMBIA’S ABORIGINAL POPULATION IN British Columbia’s First Nation Reserves time of European contact.112 Each First RELATION TO TOTAL PROVINCIAL POPULATION Number of British Columbia account for only 0.36 per cent of the Nation had its own language, culture, Reserves 4.1% Aboriginal total provincial land area. social structure, legal system and People in B.C. First Nations have 1,613 reserves in political system. British Columbia. Reserves were initially 0.36% B.C. Reserves 95.9% Non-Aboriginal area Population in B.C. created by colonial Governors and later The diversity and distinctness of First by the Canadian government. They are Nations can be seen in the number of 99.64% Remainder of parcels of land allocated to bands and BC area Aboriginal language families that exist held in trust by the federal Crown for throughout Canada. Linguists refer to Status Indians. It is noteworthy that groups of languages that are clearly 71 percent of Canada’s 2,263 reserves distinct, yet share enough “cognate are located in British Columbia. vocabulary” to suggest common ances- try and origin as “language families”.

109 Indian Act, Ibid, at section 2(1). while Indian bands are often referred to as First Nations, all First Nations may not necessarily be Indian bands: Inuit communities, for example, are 111 34 110 J. Stephen O'Neill, DECISION MAKING ON RESERVES - THE Robert J. Muckle, THE FIRST NATIONS OF BRITISH COLUMBIA, 35 also First Nations.” CURRENT SITUATON, in “Aboriginal Issues Today: A Legal and Business Ibid, 33 Guide”, Ibid, 98: “There is no definition of First Nation in the Indian 112 Supra, 35 Act, but the term has become relatively popular among a good number of Canada's 608 Indian Bands. (It is important to note, however, that MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Canada is home to eleven distinct Governance Structures: It is important to understand that non-Aboriginal Canadians was 37.7 Aboriginal language families, of which Customary and Statutory, pre-contact Aboriginal governance years, while for Aboriginal People the seven exist in British Columbia.113 Sixty Hereditary and Elected structures often included Hereditary median age was 24.7 years. four percent of Canada’s unique There were many different governing Chiefs (whose powers were passed Fastest Growing Population Aboriginal languages exist only in institutions in Canada’s pre-contact down from one generation to the next British Columbia. Aboriginal societies. Scholars have along blood lines or other cultural The birth rate of Aboriginal children is transcribed oral histories of matrilineal, protocols), and that those structures are about 1.5 times higher than that of Each language family is completely patrilineal, and band equalitarian legally recognized today. Before non-Aboriginal children. Aboriginal distinct; the specific languages within a governments. In matrilineal commu- commencing negotiations and before children represent 5.6 per cent of all family “… may be as similar as Spanish nities women held the balance of relying on band council decisions children in Canada. is to French, and languages belonging power and in patrilineal communities (whether elected or customary), to different language families may be men held the balance of power. companies should prepare by learning Forces Affecting Canada’s as different as English is from the particular bands’ leadership and Aboriginal People Cantonese.”114 If someone from the In the 1880’s, Section 74 was inserted decision-making protocols, and then In comparison to non-Aboriginal Athapascan tried to speak to someone into the Indian Act, imposing a regime should protect themselves by confirming People, Canada’s Aboriginal People from the Wakashan, they would share for the election of band councils under that the prescribed decision-making pro- experience: little ability to communicate. Canada’s a system of rules patterned after cedures were followed.117 Also, in light • Poorer health, First Nation communities are made up municipal law. This imposition of a of the Indian Act’s limitations on a band • Lower levels of education, of people from many different cultures foreign leadership and governance council’s ability to contract, it is important • Lower income levels, and languages. structure has been strenuously opposed to consider legal enforcement mech- • Higher rates of unemployment, over the years by many First Nations, anisms prior to contract execution. • Higher levels of incarceration, and and has contributed to breakdowns of There is no such thing as generic or • Higher rates of suicide. traditional culture and governance in homogenous “Aboriginal People of Aboriginal Youth many communities where it has been Community Needs Drive First Canada.” That would be like referring As stated above, Aboriginal People imposed.115 Over the years, many Nations’ Negotiation Priorities to all people from Europe as Europeans. accounted for 3.3 per cent of Canada’s bands have struggled to maintain their When a Scot is asked “Where did your total population in 2001. Approximately These issues preoccupy leadership customary and often hereditary ancestors come from?” he will answer, 33 per cent of Aboriginal People were thinking in Aboriginal Canada, and they governance culture. More recently, “Scotland.” If the questioner responds, aged 14 and under in 2001, compared are often placed high on Aboriginal many bands have taken advantage of “Oh, you’re European” – the Scot may to 19 per cent of the same age group in negotiating agendas. Aboriginal leaders Indian Act amendments allowing a well be offended. This is no different in the non-Aboriginal population. and negotiators will tend to place pre- return to customary and hereditary mium value on measures that increase Aboriginal communities. If the response 116 governance structures and systems. Median Age to “Haida Gwaii” is “Oh, you’re an levels of health, education, and income in While some First Nations have formal The median age is the point where their communities, and on measures that Indian” – you have likely offended the clan structures, others organize around exactly one-half of the population is decrease levels of unemployment, incar- person of Haida ancestry. elaborate “house” structures. Still older and the other half is younger. ceration, substance abuse and suicide. others have completely different forms In the 2001 Census, the median age for of social organization.

113 See Muckle, Ibid, 35 for a table setting out B.C.'s language families 115 See: Christopher McKee, “TREATY TALKS IN BRITISH COLUMBIA”, 117 Supra, 107 36 and member languages. Muckle lists eight language families: Ibid, 81-82 37 Algonquian, Athapascan, Haida, Ktunaxa, Salishan, Tsimshian, Tlingit and 116 In 1997, about 50 per cent of the 608 bands registered with the Wakashan. Department of Indian and Northern Development (DIAND) were elected 114 Supra under s. 74 of the Act. See O'Neill, Ibid, 108 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Aboriginal Land Claims and The Treaty-Making Process in The British Columbia Treaty Overlapping Traditional British Columbia121 Commission (the Commission) Territories: A Prejudicial Appointed on April 15, 1993 as the Misconception Introduction “keeper of the process” – the It is a common and prejudicial miscon- The early and middle history of British Commission is an independent and ception that British Columbia’s First Columbia’s approach to resolution of impartial body, made up of five Nations are claiming 110 per cent of claims of Aboriginal title and rights and commissioners: one appointed by each the provincial land base. In preparation to treaty-making has already been order of government, two by the FNS, for negotiations, the British Columbia reviewed (please see pages 19-21). and a chief commissioner agreed to by Treaty Commission process requires First B.C.’s modern era of treaty-making all three principals. The Commission Nations to identify areas in which they began in the fall of 1990, with then- has three complementary roles: 118 • Facilitation – supporting the have an interest. Keep in mind that Premier Vander Zalm’s announcement Stage 1: Statement of Intent negotiation process; First Nations’ traditional ‘community’ that his government was prepared The filing of a Statement of Intent (SOI) • Funding – allocating support funding perspective on land is very different to open negotiations with B.C.’s to level the playing field for First by a First Nation starts the treaty from the European ‘fee simple’ view. Aboriginal leaders (without acknowl- Nations’ negotiations with the fed- process. To be complete, the SOI must In fact, it is not uncommon for First edging the existence of unextinguished eral and provincial governments; and identify the First Nation and the people Nations to share the use of their lands, Aboriginal title). On December 3, 1990, • Public information – providing non- whom it represents, describe the area and to have overlapping territorial the British Columbia Claims Task Force partisan information on the treaty of the traditional territory, and identify process to the public, using a variety boundaries. was established. Made up of represent- a formal contact person. atives of the federal and provincial of communications tools. It is also important to recognize that governments and the First Nations Stage 2: Preparations for Negotiations The Commission has authority to make under the British Columbia Treaty Congress (later renamed the First Nations Within 45 days of receiving the SOI, the recommendations, but is unable to Commission process, First Nations are Summit – (FNS)), the Task Force pre- Commission must convene a meeting of compel parties or principals to act. An required to work out overlapping sented its formal report on June 28, 1991, the three parties to exchange infor- annual report on the effectiveness of boundaries between themselves during outlining 19 recommendations for treaty mation, review the criteria that will the process and on the progress of their negotiations with Canada and the negotiation principles and procedures. determine readiness to negotiate a each negotiation is prepared by the Province.119 Finally, it should be noted treaty, consider the research that may Commission for both orders of govern- that the province of British Columbia On September 21, 1992, representatives be needed to prepare for negotiation, ment, First Nations, and the public.122 has negotiation mandates in place that of the two orders of government and and outline the main issues of concern will see only a small portion of land FNS signed the British Columbia Treaty The Treaty-making Process to each party. Once the Commission is transferred as part of the treaty Commission Agreement, endorsing all satisfied that a set of specific criteria Treaty-making is entirely voluntary, and process, and that will ensure that 19 Task Force recommendations – which has been established, it will confirm follows the six stage process recom- privately owned lands will not be included the formation of the British that the parties are ready to begin mended by the Task Force, which is subject to treaty-based transfer.120 Columbia Treaty Commission and the Stage Three. establishment of a six stage treaty summarized below: negotiation process.

118 For an overview map of Treaty Negotiations in British Columbia, see: available-for-purchase private land and other elements of the treaty will http://srmwww.gov.bc.ca/dss/initiatives/treaty/Images/Prov_2003/BCSOI_As be critical to settlements in urban areas.” 122 ize_Oct2003.pdf 121 This section of our Guidebook relies on Christopher McKee's TREATY Christopher McKee, Supra, 33. See also: BC TREATY COMMISSION, 38 119 TALKS IN BRITISH COLUMBIA: Negotiating a Mutually Beneficial Commissioners Adam and Harcourt's Presentation to Supreme Court 39 See: www.bctreaty.net/files_3/sixstages-14.html Justices, Thursday, November 10, 2004, page 1. 120 Future, Ibid, for both structure and content. For an excellent overview See B.C. Treaty Commission Annual Report 2004, Ibid, 13 for and analysis of B.C.'s treaty-making history and current process, please (www.bctreaty.net/files_3/annuals.html ) discussion of various challenges to be met in treaty-making in urban areas refer to Chapters 1 and 2. where available Crown land is scarce: “Where Crown land is limited, MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Stage 3: Negotiation of a Framework Stage 6: Implementation of the Treaty Interim Measures Agreements current treaty process by pointing out that Agreement Plans and protocol for the long-term (IMAs) over 300 IMAs have been put in place to The Framework Agreement is an implementation of the treaty will be The creation of a series of IMAs was one date, “… including 69 treaty related made during this stage of the process. agenda approved by the three parties of the British Columbia Task Force measures, 145 economic development recommendations that led to the current projects and 15 agreements for co- that identifies: the issues on the table, Funding the Treaty-Making treaty process. IMAs are intended 127 the goals of the negotiation process, management of parklands.” Process primarily to regulate the management special procedural arrangements, and A Memorandum of Understanding and use of natural resources and lands – Fair Negotiation of Fair Treaties: the negotiation timetable. (MOU) between the Governments of protecting and balancing the interests of the Business Case Canada and British Columbia dated the parties (including claimed Aboriginal Stage 4: Negotiation of an Agreement Our focus here is to review briefly the June 21, 1993 established the funding title and rights) during the treaty in Principle regime for all stages of the treaty- economic implications of proceeding negotiation process. This stage marks entry into substantive making process. The MOU deals with with good faith negotiation of fair four broad issues: pre-treaty costs, treaties, or in the alternative, staying negotiations directed at achieving a Two general types of IMAs exist. First, settlement costs, implementation costs, with the status quo. series of agreements that will form the ‘program-related interim measures’ are and self-government costs.123 basis of a treaty. The Agreement in used to carry out the responsibilities of Costs and Benefits of Settling Treaties Principle also lays out the ratification First Nations Participation in the various government ministries, There is no doubt that the costs will be procedure that each party will follow in including fulfilling the provincial Treaty Process considerable. However, there is strong seeking a mandate from their respec- government’s fiduciary responsibilities There are currently 55 First Nations124 research available that indicates that tive constituents to finalize their treaty. to Aboriginal people. Such IMAs are participating in the B.C. treaty process the benefits will far outweigh those seen by the Province as integral to its costs. In 2004, the Commission released Stage 5: Negotiation to Finalize a at 44 negotiation tables. Five negoti- overall responsibility as a government. a comprehensive study prepared by the Treaty ations are at Stage 5, 41 are at Stage 4, Second, ‘treaty-related measures’ are accounting firm of Grant Thorton LLP, three at Stage 3, and six are at Stage 2. used to protect agreements made The accords reached in the Agreement An Update to the Financial and Late in 2004, four First Nations were during the negotiation process while in Principle will be incorporated into Economic Analysis of Treaty Settlements “cautiously optimistic” that they would other issues continue to be negotiated. the formal treaty at Stage 5. in British Columbia.128 Included were “conclude final agreements early in Treaty-related measure IMAs are Remaining technical and legal issues summaries of two major studies of the 2005, if they were able to maintain the intended to safeguard the integrity of economic implications of settling will be addressed, and if they are current pace of intensive negotiations negotiation process from the various treaties in British Columbia, along with resolved, a Final Agreement will be and reach agreement on all of the political and business pressures an earlier study of the costs of signed and formally ratified to outstanding issues.”125 Another dozen influencing all of the parties during the uncertainty caused by widespread complete the negotiation process. long negotiation process.126 129 First Nations hope to achieve Agree- unresolved Aboriginal land claims. ments in Principle in 2005 or 2006. In 1996, the accounting firm of KPMG The B.C. government has sought to released a study containing the demonstrate its commitment to the following key findings: 123 The Commission has criticized the B.C. government for concentrating government is [prohibited] … This provision in the MOU should prevent its resources on a handful of negotiation tables, and has urged the much of the off-loading that the federal government has undertaken in Province “… to provide adequate resources to treaty tables where First recent years in policy areas that are subject to shared jurisdiction with the Nations are ready willing and able to negotiate.” BC Treaty Commission provinces. It should also serve as a check against the provincial Presentation to Supreme Court Justices, Ibid, p. 2. However, in government assuming a preponderance of the policy responsibilities over September 2004 the Commission announced, “We were pleased by Aboriginal affairs once the treaties have been ratified. Apart from where Minister Plant's announcement last week of an additional $2,135,000 to there is devolution of power to First Nations as a result of the treaties, the policy authority will be shared by the federal and British Columbia work toward final agreements and additional agreements in principle. 126 Treaty-related IMAs must be submitted to the provincial cabinet for 129 Supra, Executive Summary, 3-4 governments.” Christopher McKee, TREATY TALKS IN BRITISH And there is indication from the minister that if we do have success in approval. See McKee, Ibid, 41 achieving agreements, more resources could be available next year. See: COLUMBIA, Ibid, 113 127 BC Treaty Commission Presentation to FNS, September 23, 2004, www.bctreaty.net , BC Treaty Commission Presentation to First Nations 124 Representing about two-thirds of the Aboriginal people of British 40 Ibid, 4 41 Summit, Thursday, September 23, 2004, North Vancouver, 4 Columbia. See: BC Treaty Commission Presentation to Supreme Court 128 McKee points out interesting political and policy implications arising from Justices, Ibid, 2 Grant Thorton LLP, An Update to the Financial and Economic the terms of the MOU: “First, off-loading between the two orders of 125 BC Treaty Commission Annual Report, 2004, Ibid, 10 Analysis of Treaty Settlements in British Columbia, submitted to British Columbia Treaty Commission, March 12, 2004. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

• First Nations would accrue a financial • “The reaction of the non-Aboriginal Costs of Not Settling Treaties benefit of $6.02 billion to $6.63 community to settlement has At least as important as the direct costs billion (1995$, over 40 years) generally been positive. of completing treaties, are the costs of • Non-First Nations British Columbians • In each of the cases Aboriginal the alternative – not completing treaties. would incur a financial cost of mechanisms exist or are planned to between $1.37 billion to $2.11 billion carry out business investment. The key findings of Price Waterhouse’s (1995$, over 40 years) • Aboriginal groups have taken a 1990 study, Economic Value of • Net financial benefits to British variety of approaches to business Uncertainty Associated with Native Columbians were estimated to be investment, including investment in a Claims in B.C. are summarized below: $3.91 billion to $5.26 billion (1995$, number of non-traditional businesses. • “$1 billion impact and 1,500 jobs over 40 years)130 • Aboriginal economic corporations affected have tended to reinvest any profits • $50 million per year in lost capital In 1999, Grant Thorton LLP issued its that have been generated rather expenditures in the mining industry. Financial and Economic Analysis of than distribute funds to individuals. • $75 million per year of expenditures Treaty Settlements in BC, including the • A range of employment oppor- in mining delayed 3 years. following key findings: tunities has existed for individuals • 100 jobs per year were lost as a result external to the settlement region or of unsettled land claims. • First Nations would accrue a financial group, largely because some settle- • A 1% investment premium is needed benefit of $6.28 billion to $6.76 ment groups lacked these resources to compensate for the uncertainty.”133 billion (1998$, over 40 years) internally … People involved with business activities and resource devel- • Non-First Nation British Columbians The impact of unresolved Aboriginal would incur a financial cost between opment have been employed across a demonstrates that this can be devel- land claims on investment activity and full spectrum of jobs. $2.08 billion to $2.48 billion (1998$, oped through shared management of • The review of land claims has confidence in British Columbia was also over 40 years) resources, increased commercial • Net financial benefits to British revealed several general trends: examined in a survey conducted in 2004. interaction in the business community Columbians were estimated to be - Settlements have not brought about One hundred forty three interviews through both private Aboriginal $3.80 billion to $4.68 billion (1998$, any dramatic changes for the non- were conducted through a survey of investment and joint venture arrange- over 40 years)131 Aboriginal community; 550 contacts, focusing on businesses - Controversy prior to and during the ments, and increased understanding with B.C. operations generating annual negotiation of the claim reduces through communication during the Finally, we should note an interesting revenue of at least $10 million, in the during the implementation period; and 1995 study commissioned by the negotiation process. An approach - In many cases settlement has led to a following sectors: Forestry, Investment/ toward partnership that provides governments of Canada and British stronger partnership between Financial, Mining, Oil and Gas, identity, initiates respect, reduces Columbia. The ARA Consulting Group Aboriginal and non-Aboriginal societies. Transportation and Utilities. assessed the overall impact of treaty dependency, and increases certainty is a productive outcome of the settlement settlement of Aboriginal claims in B.C., A fundamental principle for the treaty The results are summarized below: 132 based on the treaty experiences of process is to establish a contract of process.” • “Q. Assuming the BC economy other parts of Canada, the United understanding for the future between performs as you expect over the next five years, how important will each of States, Australia, and New Zealand. the Aboriginal and non-Aboriginal the following factors be in your That study’s conclusions included the communities. The review of cases company’s investment decisions in BC? following findings:

132 130 Summarized in An Update to the Financial and Economic ARA Consulting Group Inc., Social and Economic Impacts of 42 Analysis of Treaty Settlements in British Columbia, Supra, 3 Aboriginal Land Claim Settlements: A Case Study Analysis, Prepared 43 131 for Ministry of Aboriginal Affairs, Province of British Columbia, and Summarized in An Update to the Financial and Economic Analysis Federal Treaty Negotiation Office, Government of Canada, (Victoria: of Treaty Settlements in British Columbia, Supra, 4 Queen's Printer for British Columbia, 1996) 24-35 133 Supra, page 3 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

A. 67 per cent of survey respondents and other direct measures? Aboriginal “The highest cost of all which our recommendation in 1992 to represent cited ‘unresolved First Nation land blockades have been used very effectively opponents fail to factor into the hard the interests of B.C.’s major business, claims negotiations’ as important in in the past to captivate media and math of land claims is the costs to labour, and wildlife groups in the talks) investment decisions – very important taxpayers of keeping the current public attention, creating significant have complained that their role is too (31%) and somewhat important (36%). system. No one, not us, not non- market turmoil and political pressure. “peripheral” to the negotiations. As Natives, approves of the billions of • Q. Have the unresolved First Nation McKee provides an excellent review dollars spent annually to keep McKee points out, while interest groups land claims in BC reduced your of this issue: Aboriginal people in the binding and the public should have more company’s investment in BC over the “Native blockades … point to a gen- poverty of our tiny reserves, beggars substantive involvement during the past five years, or had no real impact eral feeling of discontent by Aboriginal on our own land, sharing no part of Framework Agreement and Agreement peoples over the manner in which 136 on investment decisions? its resource wealth.” in Principle stages, great care should be A. One in five companies responding Canadian governments have tradi- taken not to undermine the integrity of to the survey state that “unresolved tionally addressed Native grievances Reflections on the B.C. Treaty Process … [B]lockades and other crisis sit- actual negotiations between the part- First Nations land claims” reduced The participation of 55 First Nations at their investment in BC over the past uations seem to be a most effective icipants on the basis of prejudice and 44 separate tables represents the five years. Six per cent reported a means of forcing governments to bias.137 largest treaty negotiation process ever significant reduction in investment. take Native claims seriously, and they suggest, by extension, that Aboriginal undertaken in Canada. While progress The recent Supreme Court of Canada peoples are no longer willing to has been made, there have been many decisions in Haida Nation and Taku • Q. If a significant number of First accept the stereotype of themselves delays and setbacks in the treaty Tlingit create fresh opportunity and Nations land claims were settled, as victims in a society dominated process since its inception in 1993. Too largely by non-Aboriginal interests … heightened urgency for the achieve- would your company increase its few First Nations are at advanced stages investment over and above what is To what extent these acts of civil ment of significant treaty negotiation of negotiations, and dark clouds of already planned for the next five disobedience will continue in the breakthroughs. The Supreme Court litigation hang heavy in the air. Also, years, or would this have no real future, perhaps even after the has raised Aboriginal expectations impact on investment plans? treaties are concluded, is uncertain. one-third of B.C.’s Aboriginal peoples significantly – for improved quality of But if blockades are to be used less A. One in four companies responding are not yet participating in treaty talks, consultation and accommodation re- to the survey would increase often by Aboriginal groups, and if including the membership of the Union garding potential infringement on their investment if a significant number of they are to be seen as illegitimate of British Columbia Indian Chiefs expressions of Aboriginal discontent, Aboriginal title and rights, and for First Nation claims were settled. (UBCIC) (representing many B.C. interior Eight per cent would increase then the treaties must be concluded strengthened government commitment First Nations). investment significantly.” 134 expeditiously, and must be seen to of resources and priority to the treaty- be fair, especially by Native groups.” 135 making process. Non-Aboriginal criticism of the treaty If merely having the dark cloud of process has focused on the involvement unresolved claims of Aboriginal title As we leave this area, let’s consider the The political and economic stakes are at of third parties and the public in the and other rights hanging in the air has high social cost of the status quo – for least as high as the expectations. Let’s talks, and on treaty costs. For example, this kind of negative impact on business Aboriginal and non-Aboriginal hope that fears raised by the seriousness members of the Treaty Negotiation and investment confidence, what will communities alike. In the words of of what’s at stake are not allowed to drive Advisory Committee (appointed happen if impatient and frustrated Chief Joseph Gosnell Sr., President of negative and defensive decision-making. pursuant to a Claims Task Force Aboriginal activists resort to blockades the Nisga’a Tribal Council:

134 The Mustel Group, Impact of Unresolved First Nations Land 136 See McKee, Supra, 65 44 Claims on Investment in B.C., February, 2004, 137 McKee, Ibid, 114-15 45 www.bctreaty.net/files_3/issues_financial.html#studies 135 McKee, TREATY TALKS IN BRITISH COLUMBIA.,Ibid, 116-117 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

believes that the lessons ATCO has learned over four decades are keys to building a more socially progressive and profitable future for everyone: “ATCO brings expertise and capital, but our partners bring skills we don’t have. It makes for better companies. Continuously listening to and consult- ing with elders, along with trust, respect and integrity, are core to work- ing together. Today we have numerous joint ventures with Aboriginal and Inuit communities where we are equal partners, or as in most cases now, we are the minority partner.”

Partnership: Shared Tuccaro, head of NABA, Resources and Shared “In Canada’s northern diamond Success mines, Aboriginals are doing hundreds of millions of dollars in business, and in the oil sands, Aboriginal businesses Resource Expo 2004 did over $400 million in 2003 alone. A recent conference (November, 2004) This is the result of good partnerships in Vancouver brought together that are providing Aboriginals with job and educational opportunities – decision-makers from around the world the means to develop a sustainable to develop opportunities for Aboriginal future. It’s time for more Aboriginals communities and their corporate to get busy, the sooner the better.”138 partners. Prominent at Resource Expo

2004 were the National Aboriginal Another featured Resource Expo 2004 Business Association (NABA), the Native participant was the ATCO Group, a rade Association (NITA), Investment T recognized leader in development of and the Indian Resource Council of innovative and profitable joint venture Canada (IRCA) – all Aboriginal companies with Aboriginal communities. organizations focused on bringing Michael Shaw, managing director of business opportunities and Aboriginal Global Enterprises for the ATCO Group, people together. According to Dave

138 Randall Anthony Mang, Aboriginal Resource Development Key 46 to National Prosperity, The Globe and Mail, November 8, 2004, B8 47 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

PART II: Mining & Aboriginal Community engagement CASE STUDIES, POINTERS, PRACTICAL ADVICE & BEST PRACTICES

INTRODUCTION “[M]ining companies created 389,000 direct jobs (one in every 41 Canadian jobs) [in 2003], paying the highest Mining’s Economic Impacts wages of any industrial sector, with Canada’s mineral wealth is well-known total annual average salaries of throughout the country and the world. $19 billion (excluding benefits). Perhaps not so well-known, to industry Thousands of additional indirect jobs insiders immersed in operational detail, are also created in rural, urban and or to industry observers focused on Aboriginal communities. In 2003, the footprint issues, is the sheer scale of industry spent $641 million on explor- mining’s contribution to the Canadian ation, $324 million on research and economy. For more than a century, development, was responsible for mining has been one of Canada’s 30 per cent of all shares traded on the TSX, and supported more than 2,200 largest industries, contributing an small and medium-sized businesses, average of four per cent of the including Aboriginal businesses… country’s real gross domestic product (GDP) over the past 20 years. In 2003, Mining operations are not only that contribution amounted to about economically important, but inextri- CAN$41 billion in GDP; with another cably linked to the Canadian economy. CAN$4.6 billion added by related Today, we export 74 per cent of sectors providing mining-related mineral production, representing equipment and services.139 13 per cent of total Canadian exports (one in every eight export dollars). The Mining Industry’s Brief to the 61st Further, mining is responsible for Annual Mines Ministers’ Conference, 73 per cent of port volume and 61 per Building on our Strengths: A World cent of rail freight revenue. As a Leader in Mining, illustrates the scale of trading nation, mining is not only an mining companies’ contribution to engine of the national economy, but a Canada’s national and regional critical component in ensuring the economies, balance of trade, and competitiveness of all Canadian transportation infrastructure: exporters.”140

139 The Mining Association of Canada (MAC) and the Canadian Mineral Industry Federation (CMIF), Building on our Strengths: A World Leader 49 in Mining, A Brief to the 61st Annual Mines Ministers' Conference (Iqaluit, Nunavut, July 20, 2004) 4 140 Supra, 4 to p. 49 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Mining’s Aboriginal Engagement settling of Aboriginal land claims; partner relationships in which there is a Mining’s Aboriginal Engagement Progress: The Whitehorse Mining guaranteeing stakeholder participation better awareness of respective issues, Progress: Initiative (WMI) where the public interest is affected; needs, and concerns, and a higher level AME BC – Ten Principles of and creating a climate for innovative of mutual understanding. Sustainable Relationships The very fact that this Guidebook is and effective responses to change.”141 To support policies, legislation, and between the Mineral Sector and being produced signifies at least two A key element of that WMI Leadership agreements that encourage growth First Nations things: progress is being made in Council Accord addressed the issue of in business relationships between the advancing the cause and quality of mining industry and Aboriginal Aboriginal involvement in the mining Dan Jepsen, President & CEO of the Aboriginal engagement in Canada’s communities. industry: Association for Mineral Exploration mineral exploration and mining sectors; “Many Aboriginal communities want To ensure regular and open consulta- British Columbia (AME BC), presented and recognition that further progress to become more involved in all tions between exploration companies the first Working Draft of this needs to be made. Significant steps in aspects of development, including and mine developers, and Aboriginal Guidebook at the Aboriginal that progress have been achieved the mineral industry. The mining communities, and to ensure that the Engagement & Sustainability through the WMI: industry could facilitate socio- Aboriginal communities are involved Conference in Vancouver on February “… a multistakeholder process, economic growth in Aboriginal in decision-making processes that 8, 2005.143 During his presentation involving the mining industry, federal communities. concern exploration, infrastructure Mr. Jepsen outlined the “10 Principles and provincial governments, labour development, mine development, Our Principle unions, Aboriginal peoples and the and reclamation. of Sustainable Relationships between environmental community, that took Aboriginal peoples are entitled to the Mineral Sector and First Nations” opportunities to participate fully in place from 1992 to 1994. To remove any impediment in the (the 10 Principles): mineral development at all stages of Indian Act and the Indian Act Reg- i) “recognize the asserted traditional The Leadership Council Accord, which mining and associated industries and ulations, in provincial and territorial territories and areas of cultural or resulted from the WMI process, adopts at all employment levels. legislation, in federal-provincial agree- heritage interest of Aboriginal a strategic vision for a healthy mining ments, or under development policies, Communities; industry in the context of maintain- Our Goals to full participation of Aboriginal ii) recognize that Aboriginal ing healthy and diverse ecosystems in To remove the barriers – real and peoples in economic opportunities in Communities have overlapping or Canada, and for sharing opportunities artificial – to education, workplace, mining and related businesses.”142 shared traditional territories; with Aboriginal peoples. It calls for and business opportunities that often iii) support the conclusion of fair, improving the investment climate for prevent Aboriginal peoples from affordable and reasonable treaties investors; streamlining and harmonizing maximizing benefits from the mining (support the respect, recognition, and regulatory and tax regimes; ensuring industry. reconciliation process between the participation of Aboriginal peoples Canada, British Columbia, Aboriginal in all aspects of mining; adopting To allow increased participation of People and First Nations); sound environmental practices; Aboriginal peoples in all parts of the iv) respect the diversity of interests and establishing an ecologically based mining industry, including direct cultures among Aboriginal Peoples; system of protected areas; providing employment and related economic or workers with healthy and safe business opportunities. environments and a continued high To allow the mining industry, standard of living; recognition and Aboriginal peoples, and other interest- 142 THE WHITEHORSE MINING INITIATIVE, LEADERSHIP COUNCIL Association of Canada, November 5, 1998 respect for Aboriginal treaty rights; ACCORD, Final Report, October, 1994, 27 www.mining.ca/english/publications/wmi.htm ed stakeholders to develop formalized See: www.natural-resources.org/minerals/csr/docs/guidelines/UNDESA- 143 BUILDING SUSTAINABLE RELATIONSHIPS, Aboriginal UNEP%20Guidelines/App%206%20-%20Whitehorse%20Mining% Engagement & Sustainability Conference, February 8-9, 2005, hosted 20Initiative.pdf by Canadian Business for Social Responsibility (CBSR). 141 The Mining Association of Canada, ABORIGINAL ECONOMIC For a good review of WMI, its history, implementation progress, and 50 DEVELOPMENT AND THE CANADIAN MINING INDUSTRY, future prospects four years after the signing of the Leadership Council 51 Presentation to the Standing Committee on Aboriginal Affairs and Accord, see: Northern Development, June 10, 1998, 1 See: A PRESENTATION TO THE HOUSE OF COMMONS STANDING www.mining.ca/english/publications/native.html COMMITTEE ON NATURAL RESOURCES AND GOVERNMENT OPERATIONS, by Gisele Jacob, Vice-President, Public Affairs, The Mining MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

v) respect the internal affairs of Part II of this Guidebook is intended to Three Case Studies Aboriginal Communities; reflect the spirit of both the Whitehorse vi) have a common commitment to Initiative and the 10 Principles. Progressive, sustainability and respect for the land The following Case Studies, Pointers, and its resources; profitable Practical Advice and Best Practices are vii) recognize that Aboriginal Communities have varying interests provided as examples and suggestions, partnerships and objectives in relationships and not as templates or recipes. Each cooperative ventures; situation and each First Nation is Introduction viii) acknowledge that there is a unique and should be approached as Set out below are three examples of shortage of capital to involve such. It is our hope and goal that the successful partnerships involving mem- Aboriginal bands in cooperative experiences and principles set out in the bers of the mining and Aboriginal ventures; following pages will inform and equip ix) encourage the enhancement of communities. These Case Studies are Aboriginal capacity to develop training, the reader to approach Aboriginal not Utopian – serious obstacles and employment and business opportunities community engagement with respect challenges have been encountered, and in the resource sector; and and patience, seeking opportunities to others will be faced in the future. x) support Aboriginal aspirations in build mutual opportunity and shared Neither are these demonstrations of securing economic development.”144 rewards. The following words have turnkey solutions: each Case Study been used previously by AME BC to presents a very different scenario, and Noting that the 10 Principles were introduce the 10 Principles, and are features unique partnership conditions. originally developed in consultation applicable here: Yet, common qualities can be found in with 32 coastal First Nations and “Successful partnerships require the ways the parties approach one Western Forest Products Ltd., and were commitment, hard work, under- another and the process of engage- subsequently edited and adopted by standing, trust and mutual respect. ment, including: starting from positions AME BC to guide its positions on all They also involve recognizing each other’s values and aspirations, and of genuine and mutual respect, develop- activities and issues related to Aboriginal identifying and communicating ing human relationships, emphasizing communities, Mr. Jepsen emphasized common goals. The AME BC shares communication, sharing opportunities, that the strength of their impact First Nations’ goals of respecting land and seeking mutual solutions. potential depends on commitment: and resources, and conducting act- “Adopted and committed to at a very ivities in economically, socially, and high level, the 10 Principles can lay the environmentally responsible ways, to foundation for an organization’s pos- ensure long-term sustainability.”145 itive relations with First Nations. These principles are more than words - they signify commitment to values, and must have clear buy-in from all levels of the organization if you expect results.”

144 See: www.amebc.ca/firstnations.htm 52 145 BCYCM (now AME BC), Statement on First Nations Treaties in 53 British Columbia, January 2004, 3 See: www.amebc.ca/SiteCM/U/D/C4152CA7DCA61272.pdf MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

CASE STUDY 1 In the fall of 2003, Eagle Rock obtained corporation’s decision-making processes adherence to the following Aboriginal its provincial Environmental Assessment – particularly regarding environmental engagement principles was crucial to Vancouver Island’s Eagle Rock Certificate and Mining Permit, issues. the successful conclusion of the Eagle Quarry Project: following an extensive public Rock partnership negotiations: A Modern Industry-First Nations Mining • respect for the asserted traditional Partnership Between Polaris Minerals consultation and hearing process that The agreement contains several rights and claims of its First Nation Corporation, the Hupacasath First Nation, raised no public opposition. Eagle Rock features that separate this partnership partners; and the is now moving to secure marketing from more traditional industry- • acknowledgement that those rights partnerships, strategic locations and Aboriginal ventures. Polaris has agreed include unextinguished Aboriginal Introduction regulatory approvals for California to finance Eagle Rock until a rights, and potentially, title; Eagle Rock Materials Ltd. (Eagle Rock) is dockside terminals, and to achieve a construction decision is made. On the • early and sustained engagement by a private B.C. company, formed in 2002 cost-effective bulk shipping solution to twenty fifth anniversary of the project senior management in commun- to hold the interests of a partnership its transportation needs. development financing, each First ication and relationship-building; between Polaris Minerals Corporation, Nation partner will have the one-time • impartiality in dealing with its current and potential First Nation the Hupacasath First Nation and the The Eagle Rock Partnership Agreement right to increase its ownership in Eagle partners, and refraining from taking Ucluelet First Nation. Eagle Rock’s goal The Hupacasath, Ucluelet and Tseshalt Rock by 50 per cent – potentially is to produce high quality construction positions on issues between them – First Nations are all members of the increasing First Nations equity in the particularly issues involving their aggregates (crushed stone) for marine ancient Nuu-chah-nulth Nation. Their project to 45 per cent. In the event that overlapping claims to traditional shipment from Vancouver Island to traditional territories include the Eagle treaties are settled over the quarry territories; and major construction industry markets Rock Quarry site on the shore of area, the First Nation partners have • recognition that First Nation commu- along the Pacific coast of North Vancouver Island’s . In July agreed that, for a term of at least nities generally lack the capacity America – primarily San Francisco Bay (expertise and capital) required to 2002, Polaris executed a business agree- 25 years from the date of such treaties, and the Los Angeles Basin. evaluate complex resource ment with the Hupacasath and Ucluelet they will not impose a tenure or tax development opportunities.148 The Eagle Rock Quarry has the potential First Nations, under which Polaris holds regime on Eagle Rock with terms less a 70 per cent interest in Eagle Rock, the favourable than what would apply to become one of the largest volume and In a recent interview, Mr. Romero said: lowest cost producers of high quality Hupacasath and Ucluelet First Nations without such treaties. Finally, an “Polaris approached its potential construction aggregate materials on the each hold a 10 per cent interest, and a Impacts and Benefits Agreement has Eagle Rock partners very early in the west coast of North America. The Quarry further 10 per cent interest is held in been negotiated, providing Eagle Rock’s process of research and preparation. site holds a high-grade granite deposit of trust for the .146 First Nation partners with preferential We asked for permission to conduct about 710 million tonnes, has deep water The trust interest will be divided opportunities for business development, field research on their traditional territories and to meet with them to port access, and is suitable for long term equally between the Hupacasath and employment and training, and direct development with minimal environmental explain our project concept. We Ucluelet Nations upon a triggering community funding.147 and social impacts. Eagle Rock’s long term encouraged them to engage experts event if the Tseshaht has not yet joined and consultants of their choice to development plan calls for annual marine Keys to Putting the Eagle Rock the partnership. Eagle Rock’s First evaluate the information we presented shipment of up to 6 million tonnes of Nation partners are represented on the Partnership Together to them, at our expense. We answered premium aggregate material, with the Board of Directors, and the business Marco Romero, Polaris’s President and all their questions and provided all the project’s lifespan estimated at over agreement clearly spells out the CEO, believes that his company’s information they requested.”149 100 years.

146 While the Tseshalt First Nation have been invited to join the Eagle 147 Polaris Minerals Corporation Annual Report 2002, 3 149 Supra. 54 Rock partnership, to date they have declined to do so. 148 Interview with Marco Romero, November 19, 2004: Polaris 55 encouraged its First Nation partners to agree to share equally in all aspects of project participation, pending resolution of their overlapping claims. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

Judith Sayers, Chief Councillor of the and duration of commitment to our collective application for the tunities provide tangible incentive Hupacasath First Nation, confirmed the communication and relationship-building various permits and certificates. and purpose for our youth to pursue importance of Polaris’s early and open required of senior management: Polaris benefited from relationships advanced education and skill the First Nations already had in the development. When I talk to our introduction of the project proposal: “Enormous amounts of time and community with local and provincial youth, I tell them, “Someday you can “Polaris showed us respect and energy have been invested by our governments, and with other key be one of Eagle Rock’s janitors, its patience. They included us in research management team in an attempt to businesses (such as Weyerhaeuser). CEO, or anything in between. It’s up and planning from an early stage of achieve meaningful consultation. It’s Third, the active involvement of to you.” At least as important as the project concept development. They all been about good faith engage- Aboriginal partners made a positive jobs, our direct involvement in gave us unlimited information, funded ment over the long haul. We have impression on the senior manage- ownership and control of the project our due diligence, and answered our spent countless valuable and ment of our potential California builds community pride, creating endless follow-up questions. We played enjoyable hours getting to know customers when they came to visit. hope and inspiration about entrepre- an important role in developing the our partners, learning their needs They were worried about the impact neurial possibilities for our people.”154 core concept and the standards applied and values, fishing, hiking and eating of unresolved First Nations title to the project. Our fundamental together, and meeting their families claims on the certainty of supply of priorities of protecting the environment with our families. Certainly we’ve had As an eight year-old boy growing up on aggregates. If we were involved in and creating capacity for our conflicts and tough negotiations – it the Ucluelet reserve, Tyson Touchie the project, our Californian customers community were laid on the table, and took a year to get our partnership recognized that his people needed to knew that the issues of Aboriginal Polaris worked with us to build those agreement done - but we’ve built a title, consultation and accommo- find new resources to survive. At an priorities into the parameters of the base of trust and mutual respect. dation were far less likely to pose a Eagle Rock Open House held as part of Eagle Rock project.”150 More importantly, we’ve developed friendships.”152 problem. They valued the contribu- the public consultation element of the tions to political and public good permitting process, he explained: Chief Councillor Sayers noted the will, and the business certainty “Even then, I knew we were in dire In discussing strengths of the Eagle Rock fairness Polaris has shown in its achieved by our committed partici- straits. We had no oil, we had no gas partnership, the Hupacasath leader keyed negotiations and on-going dealings pation in the project.”153 – we had nothing to sell. I remember with its First Nation partners: on three aspects of the importance of the saying, ‘I hope there’s a way of “From the beginning and throughout, early inclusion and active involvement of Ms. Sayers identified the building of selling those rocks, because that’s Polaris has dealt with all three First the First Nation partners: community capacity as the key about all we’ve got here.’ Then, Nations fairly, equally and openly. “First, it was a huge advantage in the contribution of the Eagle Rock Quarry when I came back from school, my Respect and trust for Polaris and public consultation element of the Dad said, “Guess what? We’re going project to the Hupacasath community: within the partnership has been permitting process. The project quickly to sell rocks to the Americans.”155 “Once we had confirmed that the strengthened by that approach. We gained credibility and support through- quarry concept could be environ- still have to resolve the territorial out the community and with regula- mentally benign, and we had Now the Eagle Rock coordinator for the overlap between the three First tors, because from early on we were negotiated a business agreement Ucluelet First Nation, Mr. Touchie notes Nations, but there is far less impact on publicly standing shoulder to shoulder committing the project to high that the project mandate calls for the project when Polaris so consis- with Polaris’s leaders. Second, our environmental standards, we quite tently steers clear of the issue.”151 environmental assessment and other 50 per cent of Eagle Rock’s labour force quickly focused on the potential for permitting processes were simplified to be supplied by its First Nation partners: strengthening our most important by the prior resolution of two of the “For us, sitting on the sidelines is not Throughout our interview for this Case assets – our young people. Eagle three First Nations’ territorial issues enough. Eagle Rock is willing to Study, Polaris’s CEO emphasized the scale Rock’s future employment oppor- by agreement with Polaris, and by recruit and train young workers.

150 Interview with Judith Sayers, Chief Councillor of the Hupacasath First 153 November 25, 2004 Interview with Judith Sayers, Ibid. 56 Nation, November 25, 2004. 154 Supra. 57 151 Supra. 155 Shayne Morrow, … Childhood thoughts of selling rock come true 152 November 19, 2004 Interview with Marco Romero, Ibid. for Ucluelet leader, The Alberni Valley Times, March 6, 2003, 4 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

If you want to become part of a And, as Judith Sayers says: CASE STUDY 2 Golden Bear’s Innovative winning team, this is it.”156 “The smart companies will continue to Technology and Golden Building Trust and Value Over see consultation and accommodation as Production the Long Haul: He shares Judith Sayers’s view of the building blocks for establishing positive, enduring relationships with Aboriginal North American Metals Corp. (NAMC) and Located about 150 kilometres west of importance of First Nations’ involvement communities. Those companies don’t The Tahltan First Nation - Golden Bear Mine, Dease Lake, British Columbia, Golden in ownership: waste time and energy worrying about Near Telegraph Creek, B.C. Bear was one of Canada’s first and most “The biggest benefit for First Nations unextinguished rights and title – they’ve successful heap leach gold mines. Its is being acknowledged by industry. moved way past that, to focusing on The Tahltan’s Chief Jerry Asp This will create a model for future low-grade reserves made the Golden the potential for success that lies in industry to come into our area. And Chief Jerry Asp of the Tahltan First Bear Mine better suited to modern building mutual value and certainty.”159 as far as local ownership is concern- Nation understands mining. He cut his heap-leaching methods than to ed, it never occurred to us before – mining teeth on the diamond drills traditional mining and milling. Fifty 157 Eagle Rock offers an exciting glimpse of we’re as local as you get.” back in 1965, working both surface and tonne truck-loads of ore were dumped the future that’s possible for Aboriginal underground. After two seasons of onto two huge heap-leach pads, lined participation in mineral exploration and prospecting the Yukon’s St. Elias It’s not surprising that Polaris’s CEO and with several layers of impermeable mining development in British Mountains, Chief Asp went under- the Hupacasath’s Chief Councillor hold black plastic.161 A cyanide solution was Columbia, and throughout Canada. ground at the Tantalus Butte Coal similar views on the business implica- dripped through the ore pile and as it Mine, near Carmacks, Yukon, where he tions of the Supreme Court of Canada’s saturated the ore, the gold dissolved served as Captain of the Underground recent decision in the Haida Nation Rescue Team and as President of the into the solution. The ‘pregnant’ case. Neither leader sees the ruling as only all-Native United Steelworkers solution was then pumped into a exempting industry from the duties of Local in North America. Moving on, container filled with ground coconut consultation and accommodation Chief Asp managed Dease Valley shells. After the gold stuck to the regarding potential infringement on Resources Ltd., soil sampling, geo-chem carbon in the shells, the cyanide claims of Aboriginal rights and title. sampling, staking claims, and line- solution was dripped through the ore According to Marco Romero: cutting in the Yukon and northern B.C. pile on the leach pad a second time. “It’s just good business to keep your In 1985, he started the Tahtlan Nation The coconut shells were taken to the neighbours and those who have Development Corporation (TNDC) to mill, where under very high temp- interests in the land informed, and to take advantage of the mining industry’s give them opportunities to participate eratures, the gold was separated from construction opportunities. In 1989, in and contribute to the decision- the carbon and poured into bars.162 while he was President, TNDC and the making process. Beyond the question Tahltan Tribal Council jointly won the of strict legal duty, we believe that the Golden Bear was projected to produce BC Environmental Award. A year earlier, resource sector has a moral duty to 215,000 ounces of gold over six years, consult meaningfully – not only with Chief Jerry Asp negotiated B.C.’s first at a production cost of US$233 per First Nations affected by our proposed Impacts and Benefits Agreement (IBA) ounce. In fact, Golden Bear yielded developments, but also with local non- in British Columbia, between the Tahltan Aboriginal communities.”158 Nation and North American Metals over 265,000 ounces between 1996 and Corp., owners of the Golden Bear Mine.160 2001 at a cash cost of about US$170 per ounce, reaching peak production of

156 Supra. 160 Chief Jerry Asp's Biography for the Manitoba Mining & Minerals slippery surface of one of the pads. “She couldn't get out”, Smallwood Convention, 2004 said. He went on to explain that a set of stairs had to be built for the use 58 157 Supra. 59 See: www.gov.mb.ca/itm/mrd/minerals/convention/speakbio.html of that ewe and future four-legged visitors. See: 158 November 19, 2004 Interview, Ibid. www.yukonweb.com/community/yukon-news/1997/sept19.htmld/ , page 161 The heap leach pads were built literally on a mountain top. During 159 16 of 27. November 25, 2004 Interview, Ibid. the mine-opening celebration, project manager Randy Smallwood told a 162 mine construction story of a curious ewe sheep that wandered onto the Supra. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

94,000 ounces in 2000. The mine created mining contract and general camp “(1) review the relationship between CASE STUDY 3 about $43 million in cash flow during a maintenance.”164 the Tahltan people, their land and Alaska’s Red Dog Mine: period of relatively low gold prices. the mining industry; and (2) build a strategy to guide that relationship in Co-operative Development by Teck Cominco, It wasn’t all smooth sailing. In April of the future. Seeking a win-win the Northwest Alaska Native Association The 1988 Golden Bear Agreement 1997, the Tahltan blockaded the mine’s outcome, and guided by the Seven (NANA) and the State of Alaska Before beginning negotiations with access road, drawing attention to their Questions to Sustainability (7QS) North American Metals, the Tahltan concerns about being excluded from Assessment Framework, the partici- Located 140 kilometres north of the Tribal Council created the Tahltan contracting opportunities and to their pants considered past, present and Arctic Circle, the Red Dog Mine opened Resource Development Policy to establish potential future conditions as a request that further environmental in 1989 and is the world’s largest the ground rules for resource develop- foundation for ensuring positive assessment be done on the mine’s producer of zinc concentrate. The outcomes for the Tahltan people and ment. As Chief Jerry Asp explained in a potential impact on their traditional their territory in the years to come.”167 94.4 million metric tonne ore body is a speech at the 2003 First Nations territories. As Yvonne Tashoots (Tahltan rich and highly concentrated deposit of Exploration and Development Symposium: Chief at the time) said in an interview 17 per cent zinc, five per cent lead, and “The 1988 Golden Bear Agreement … with the Yukon News, “It was confron- 2.4 oz/ton of silver, in an area of just highlights governance structure and tational at the start.” She noted that how a mining project may fit into the 1.6 km by 0.8 km – lying within the for several months all communications long-term plans of a community. We settlement lands of the Northwest weren’t looking for a few jobs, seasonal were filtered through a mediator, and Alaska Native Association (NANA).168 employment or a training program or concluded, “But as a result of our two … We needed a plan that would communication, we have all learned to In 1982, NANA entered an agreement benefit our entire nation, not just a few 165 respect each other a little more.” with Cominco Ltd. (Cominco – now individuals. In other words, we were Teck Cominco Limited), giving Cominco looking for a nation-building model for By September of that year, Tahltan economic development, not a job and rights to build and operate Red Dog band members made up 35 per cent of training model.”163 and to market its metal production, in Golden Bear’s employees, and the exchange for escalating royalties to Tahltan had the mine camp’s catering The Golden Bear Agreement NANA and a commitment that within contract, as well as the maintenance guaranteed a number of key benefits 12 years of mine opening, 100 per cent contract for the road they had block- for the Tahltan First Nation, including: of hourly wage jobs at the mine would aded. “Things have improved,” said Ian “work on building the 160 kilometre be filled by NANA members. The McDonald, (then-CEO and Chairman of road into the mine site, a three-year royalty package provided NANA with Wheaton River Minerals Ltd. – owners upgrading and maintenance contract, an initial payment of $1.5 million, a of North American Metals). “I think a minimum of 20 per cent of the work construction period royalty of they thought we were ignoring them and, force at the mine site and the right to $1 million per year, and a production perhaps, we were a little guilty of that.”166 negotiate for future contracts. The royalty of 4.5 per cent of net smelter It should be noted that in April, 2003, Tahltans negotiated building the returns. The production royalty will the Tahltan Mining Symposium was settling ponds, a five-year open-pit increase to 25 per cent once Cominco convened to: recovers its capital investment, and will

163 Jerry Asp, Mining … A Catalyst for Aboriginal Community 165 www.yukonweb.com/community/yukon-news/1997/sept19.htmld/, 167 For a report on the work of the Tahltan Mining Symposium, see: 168 Ron Mclean and Willie Hensley, Mining and Indigenous Peoples: 60 Development, MINING REVIEW, An Official Publication of the Association 15 of 27 International Institute for Sustainable Development, Out of Respect - The The Red Dog Mine Story, (Ottawa: The International Council on Metals 61 for Mineral Exploration British Columbia (AME BC), (Burnaby: Canada 166 Supra. Tahltan, Mining and the Seven Questions to Sustainability, See and the Environment, 1994) 1-4 Wide Magazines and Communications Ltd., Fall 2003) 8 www. iisd.org/natres/mining/tahltan.asp (IISD Publications Centre, 2004) 164 Supra. The Association for Mineral Exploration British Columbia (AME BC) was pleased to support the preparation of Out of Respect. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

increase by five per cent every five recovery of saleable zinc, lead, and Environmental protection is a major “The prime purpose of the years until NANA’s share reaches 50 per silver concentrates from the ore, yet priority for Red Dog, Cominco, and Subsistence Committee is to ensure cent, where it will remain for the life of simple enough to be operated by NANA. In addition to a comprehensive that all exploration, development and mining activity at the mine site is the project. 169 inexperienced milling crews. Second, an Cominco Environmental Policy, the Red consistent with sound stewardship on-going commitment to employee Dog Mine Operating Policy contains a principles and will not harm or Despite Red Dog’s remote location and recruitment, scholarship programs to strong environmental protection clause: threaten the subsistence needs and high development and out-shipment support education, and technical “PROTECTION OF THE ENVIRONMENT the physical, cultural, social and costs, the development’s lifespan is training programs has been required. • To comply with all existing local, economic needs of the indigenous projected at 45 to 50 years – a credit to A 26-week pre-apprenticeship program state and federal laws and people of the NANA region. The regulations. To provide additional the size and quality of the deposit, and was originally offered in the city of committee reviews many reports environmental protection measures, from extensive environmental to a unique provision in the 1982 Seward, but high dropout rates led where warranted, that are technically monitoring required by Cominco and development agreement. Cominco Cominco to relocate the program to the feasible and economically viable. by the government permits. The agreed to cap annual production at village of Kotzebue (the community quality of water, air and earth is 2.33 million metric tonnes of ore, closest to the mine site). • To encourage, support and conduct continually tested. Any possible regardless of the prevailing price of zinc necessary research to establish high effects on the two nearby villages are - stabilizing and extending Red Dog’s Employment dropout rates in the range standards of performance and to openly discussed. Activity on the improve methods for environmental production and employment. of 20 per cent in the early years of Red 83 kilometre concentrate haul road control. To keep employees, agency from the mine site to the Port site is Dog’s operation were attributed largely personnel, and the general public monitored, and potential effects on The State of Alaska’s Industrial to conflicts between shift scheduling fully informed concerning the subsistence hunting are reviewed by Development Authority invested and subsistence activities. Seasons are environmental aspects of company the committee. $160 million in building and financing short and inflexible for berry-picking operations. In all emergency the mine’s transportation system and hunting, so shift rotations were situations protect in order of priority: During the caribou migration season, (83 km. haul road and seaport). The adapted to accommodate employees’ personnel, environment, property the Subsistence Committee can shut and production.”172 state’s investment is being repaid with traditional pursuits. By 2000, the down traffic on the road, especially interest out of Cominco’s user and employment dropout rate had improved if the caribou are crossing in large Even more telling is the purpose, scope, numbers. In addition to stringent export fees, over the life of the mine.170 to 11 per cent. By July 2002, NANA and ‘on-the-ground’ power of Red Dog’s regulatory and policy requirements, members held 56 per cent of all Subsistence Committee. Created pursuant the local people who live in the area Cominco’s commitment to have NANA Red Dog-created jobs. Flexible shift have authority to close down the to the terms of the 1982 NANA/Cominco members filling all Red Dog hourly rotations and continued commitment road if they legitimately feel the Operating Agreement, the Subsistence wage jobs within 12 years was (and to training programs are expected impact is detrimental to their Committee is made up of elders from the continues to be) a major challenge, eventually to fulfill Cominco’s commit- subsistence.”173 villages of Kivalina and Noatak, and meets given that no one in the community ment of 100 per cent NANA sourcing of quarterly or as needed: had mining experience in 1982. First, hourly wage positions. 171 The Red Dog Mine174 is a strong Cominco had to design the Red Dog demonstration of what can be achieved concentrator to be sophisticated by combining state of the art enough to achieve cost-effective 172 Mclean and Hensley, Mining and Indigenous Peoples: The Red Tailleur visited the area, he “immediately noticed abundant barite, black Dog Mine Story, Ibid, Appendix B, 24 chert, siliceous sinter, and iron oxide staining. His few rock samples showed significant zinc and lead mineralization. 173 Supra, 9 169 Supra, 7 174 Supra, 4. The Red Dog deposit was discovered in 1953 by Bob Baker, Mr. Tailleur's findings and the apparent similarities of this occurrence to 170 62 Supra, 6 a local bush pilot and prospector, who noticed the rusty alteration of Red other large zinc/lead deposits around the world were documented in a 63 171 Julie Domvile, RED DOG MINE: A Role Model in Co-operative Dog Creek as he flew over the area. He reported the find to Mr. Irving USGS open file report published in 1970. The name “Red Dog Creek” Development, in “MINING REVIEW”, Ibid, 14-15 Tailleur of the U.S. Geological Survey, who was mapping the geology of was coined by Mr. Tailleur, after Bob Baker's prospecting company, the the DeLong Mountain quadrangle which includes Red Dog. When Mr. Red Dog Mining Company, named after his pet dog which frequently flew with him.” MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

technology with an imaginative, open POINTERS, PRACTICAL ADVICE & The exploration team must be aware of approach to negotiation and partnership CORPORATE BEST PRACTICES: the risks created by unrealistic expec- structuring. Modern mining can be com- Elements of Sustainable Relationship tations, and must work hard to provide patible with a fragile ecosystem and the Between the Mineral Sector and First the community with accurate, trans- Nations subsistence needs of Aboriginal partners. parent, and timely information. Sometimes exploration teams will suggest, INTRODUCTION or even promise that benefits will flow Mineral Exploration: to individuals or entire communities Mining’s ‘First Impression’ when mines go into production. Most often, these are promises of future Mineral exploration activities may have employment or business opportunity. powerful social and cultural dimensions, But, those exploration teams or com- whether or not the crews on the ground panies, particularly in the case of junior are aware of the broad impact of their companies, are seldom around if and presence and actions. Exploration per- sonnel usually make the industry’s first when the mine finally opens. Unfulfilled contact with a local community. In a promises lead to frustration, resent- very real sense, exploration companies ment, and conflict. Exploration teams and their crews are ambassadors for the should not make promises that they can entire mining sector, and the first impres- not guarantee will be kept. sions they make will colour community perceptions and responses toward mining The exploration phase of the mine cycle in the future. First impressions count can last from two to twenty years, or and are long lasting – you don’t get a more, during which the Aboriginal and second chance to make a first impression! local communities may be exposed to many different companies and individuals. Communities often interpret the arrival The attitudes of those communities of heavy equipment (i.e. road-building towards mining and mining companies machinery and drilling rigs) as the will be strongly influenced by the social commencement of mining operations. and environmental performance of these The highly speculative and preliminary nature of mineral exploration is not exploration companies. The nature of widely understood outside the industry. the local perceptions and opinions AME BC experience suggests that the created during exploration will strongly odds against a mineral exploration influence Aboriginal communities’ project being developed into a producing willingness to welcome a mine into mine are in the range of 1,500-1.175 their traditional territories. For an exploration or mining company to be

175 Michael Farnsworth, Chair of AME BC’s First Nations and Community 64 Relations Committee, in an Interview, December 21, 2004 65 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

welcomed by an Aboriginal community, - Improved access to Aboriginal - Relying on Government to perform H To earn community trust and deeper qualities than protocol and community’s labour pool consultation and accommodation on good will courtesy are required. Aboriginal Peoples - Enhanced quality of community life industry’s behalf is not prudent H To enhance local 177 understanding of and support have learned to be wary of non- through increased employment business practice for the project and related Aboriginal visitors. Their trust must be The legal case POINTERS activities earned over time, by demonstrating We have already reviewed the line of • Watch for legal requirements for • Recognize that Aboriginal people genuine respect and care for the land, Supreme Court of Canada decisions that advanced projects (i.e. permit-related and local communities have a its plant and animal life, and the people declare and define the Crown’s legal activities such as road building and substantial influence on project approval and successful development whose ancestors have lived on that land obligation to consult with Aboriginal drilling) that have potential to (not only in British Columbia and the for thousands of years. groups to ensure that Government infringe Aboriginal Rights or Title rest of Canada, but increasingly actions and decisions do not unjusti- (whether claimed or confirmed) around the world) Context for Aboriginal fiably infringe upon Aboriginal and • Commit your organization and your • Recognize that “consultation” is Community Engagement treaty rights, whether claimed, proven, people more than an element of public or settled by treaty. While the Supreme - To common courtesy relations or due diligence, and entails The business case Court recently confirmed in Haida - To honesty and integrity in all your more than developing good relations Nation176 that the duties of consul- dealings Early and effective Aboriginal community with Band leadership tation and accommodation sit exclusively - To open and consistent engagement in mineral exploration and communication - “Consultation” entails with the Crown and may not be mining projects makes good business - To maintaining good business communication with the entire delegated to third parties, project sense for communities and sector practices Aboriginal community(ies) likely to proponents should understand that: companies. Benefits include: - To remembering that credibility and be affected by a development, and • Government consultation is not a • Quicker Permitting Processes trust requires ensuring that a broad and duplication of company engagement inclusive representation of the - Facilitated Government review and H are built over the long haul, and effort community(ies) is briefed on the permitting process, with the H are lost in a day • Company-community engagements proposed project’s expected and proponent completing some of the • Build good working relationships complement Government consultation potential community impacts practical on-the-ground aspects of with First Nations • To make informed permitting decisions, • Learn of First Nation concerns, issues consultation; strengthening - To boost public trust and support Government staff need to be advised - To spark market interest and thoughts about the project and Government decision to permit of company-community engage- - To enhance regulatory and environ- consider how to deal with them - Increased community participation ments, including consultations and mental movement confidence - Find out what band leadership and in the project, ultimately leading to any resulting agreements and - To realize business certainty the community see as key heritage greater support accommodations, such as training • Inform locals of company plans and issues • Greater Community Support programs and project-related jobs ensure their understanding of them H Ask, “What do you wish for - Increased community awareness of • If Government consultation and • Help manage expectations/rumours your children?” and pursue project activities and the minimal accommodation measures are deter- about proposed activities discussion around that theme footprint of mineral projects com- mined to be inadequate, permits • Communicate regularly regarding • Learn of availability of local labour and services pared to some other industrial activities and approvals may be set aside and - activities of the company • Learn of need for and availability of - Greater community comfort with pending projects may face delay or - the status of the project training programs project activities even cancellation - current and future opportunities for net benefits from the project • Seek opportunities to develop joint

176 Haida Nation, Ibid, see pages 29-30 for discussion 177 “Businesses in Canada will … be well-advised to ensure that permits, licenses or other approvals.” Tom Isaac and Tony Knox, The 66 whatever consultation or accommodation is required by the Crown is Crown's Duty to Consult and Accommodate Aboriginal People: The 67 conducted at the now legally required standard because they will Supreme Court of Canada's Decisions in Haida Nation and Taku ultimately pay the price of inadequate consultation in questionable River Tlingit, Ibid, 7 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

initiatives and to make joint • Learn accepted and asserted • Understand that industry failure to Making Contact presentations with local First Nations boundaries of Traditional Territories provide such permit-sensitive • Make all initial contacts in person, of local First Nations information, and government failure along with assistants, advisors, etc. Before any Contact • Learn any local history and in to discharge the Crown’s duties of • First contact should be made by the particular any negative aspects of consultation and accommodation senior company personnel • Collect available information local First Nations’ past may expose your operation or - Not consultants regarding consultation and local First mining/exploration experiences development to future legal - Not lawyers Nations (The BC Treaty Commission is • Learn who has influence in the consequences that may jeopardize - Later conversations can move from a good resource: www.bctreaty.net ) community your permits and land access. (Please Chief-to-Chief to Advisor-to-Advisor - Including asserted territory maps, • Identify and learn the important and see pages 66-67 for discussion). • Persistence and patience are essential First Nation websites, affiliations, etc. sensitive local issues • Become familiar with any existing - Your time line is not their timeline • Learn locations and names of all • Understand the Aboriginal consultation training and employment initiatives - Rushing can lead to challenges, interested First Nation communities procedures used by the applicable that might be available to your conflicts and resistance • Learn locations of all nearby Indian orders of Government in the review and company and interested Aboriginal • Be aware that meetings can be reserves permitting process for mineral projects communities disrupted or delayed – by • Make sure that those reserves are • Be aware that for projects at the - Traditional harvesting activities strictly off limits to entry or transit permitting stage, provincial Sources of Information (berry picking, hunting or fishing) without permission permitting staff will be consulting • Local books, museums and news media - Unexpected events such as a death • Make sure that all crews, contractors with Aboriginal communities in order • Community Cultural Centres in the community and suppliers are notified of those to fulfill Crown obligations • First Nations web-sites • Check for harvesting times and be access restrictions • Understand that such governmental • Government representatives sure to re-confirm meeting status up not a substitute for or • Learn any Tribal Council or other consultation is • Band economic development officers until the last minute duplication of company engagement political affiliations of interested First • Consultants and lawyers • Communicate and act with respect, effort (please see pages 66-67 for Nations • Local suppliers and contractors courtesy, transparency and openness discussion) • Learn names of all contacts (First • Other companies working in the area • Be consistent in approach and living • Understand that in order to make Nation Band Chiefs, Hereditary • For advanced and ongoing up to commitments informed permitting decisions, and to Chiefs, Administrative Officers, etc.) programs/projects, consider • Be prepared to meet people from discharge the Crown’s duties of • Learn applicable decision - Retaining an Aboriginal Community several Aboriginal communities, consultation and accommodation178, making/governance structures and Relations Officer although Government staff need to be advised the roles of Hereditary and Elected H Accountable to CEO or other - Be cautious when dealing with of company-community engage- Chiefs and Elders senior executive different groups in the same ments, including • Learn community priorities H Responsible for developing, meeting - Consultations • Learn locations of any local areas of maintaining and enforcing • Initial contact should be at the H Any resulting agreements and cultural significance or other sensitivity corporate policy and procedures leadership and decision-making level, accommodations, such as - Be aware that some Aboriginal for communications and negoti- with Training programs and communities may be reluctant to s ations with Aboriginal groups - Chief project related jobs disclose the location and other - Retaining an Aboriginal - Chief Councillor, Council Member, - Conflicts and disputes information regarding such areas Employment Liaison person Band Administrator, and/or - Incidents involving trespass or - Hiring and training Aboriginal Economic Development Officer damage to Aboriginal territories Environmental Monitoring personnel • Follow-up with Band or First Nation- H whether claimed or confirmed designated contact

178 See pages 26-32 for discussion of the consultation and 68 accommodation issues arising from the recent Supreme Court of Canada 69 decision in the Haida Nation case, Ibid. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

• Do community ‘walk-about’ visits H middle to long term - Identify company contact for hiring Information Needed from Local - Chat or have coffee with Elders and development projects or contracting First Nations other band members - Enable communities to keep a • Outline potential environmental • Local work force background • Strive to engage with the full suitable reviewing perspective issues and proposed mitigation - Skill and experience community • Provide a brief industry overview measures being considered - Availability • Avoid traditional “cold” business - Including the nature, roles and • Outline sustainability elements of H Seasonal and subsistence issues form letters and correspondence capacities of the various players, project planning H Competing and conflicting • Ensure that sincere efforts are made including • Seek feedback and comment from First Nations at all stages, particularly project issues to consult with the entire Aboriginal H Prospectors regarding • Local business community background community, not just its leaders and H Junior (exploration) companies - Environmental issues and priorities - Capabilities, capacities and aspirations officials H Senior (mining) companies - Availability • Also contact the local non-Aboriginal - Minimize the use of technical maps, - Sites or concerns involving heritage, H Seasonal and subsistence issues public in the vicinity of the project, plans, and reports at this stage, to cultural or traditional use of which H Competing and conflicting particularly in the case of advanced avoid the company may be unaware • Listen attentively, proactively and project issues projects H Overwhelming local people positively • Determine level of awareness and H Giving the mistaken exposure to past exploration and What to Say impression that plans are - Watch for clues from body language and group dynamics mining activities • Express thanks for being welcomed already finalized • Be prepared179 • Determine whether there were any to their Traditional Territory • Ensure that regional and local scale - To change project plans to address particularly negative or positive • Acknowledge that the First Nation project location maps with outlines First Nation concerns experiences with previous exploration - Has resided in this region since ‘time of accepted / asserted traditional - To provide financial support for First companies and mine operators immemorial’ territories are used Nation project review and due - Obtain details of such experiences - Has asserted Aboriginal Right, Title - So that the Aboriginal community diligence, particularly regarding - Prepare to demonstrate your and Interest to such territory H Can determine if the project is advanced projects project’s respective contrasts and • Acknowledge that the Company relevant to them - To accommodate First Nation similarities to those experiences H Identify any Aboriginal rights - Hopes to explore on the First • Identify local concerns about possible in the proposed work areas community needs for further study, Nation’s Traditional Territory environmental impacts or disruptions • Outline the type of project being discussion and possible program - Hopes to avoid or minimize of traditional land use activities such proposed adjustments, thereby infringements of Aboriginal Rights, as fishing, hunting, berry picking, and - Identify minerals sought and type(s) H Alleviating concerns Title and Interest cultural events of deposits identified and projected H Reducing opposition • Explain the Company’s vision for the • Identify local concerns about possible • Outline projected labour H Generating support region and for the proposed project social and community impacts of equirements and procurement - Outline the exploration r logistics exploration activity and resource concept/method - Describe size, skills and projected development - Identify the approximate location(s) duration of labour force • Identify the community’s ‘opinion for proposed exploration - Describe shift rotation, worker leaders’ and ‘influence wielders’ - Set out the tentative time line(s) for transportation and accommodations • Identify the community’s important project development. being proposed for the labour force issues - Distinguish between - Describe supply contracts being • Assess the community’s political H early stage (grassroots) tendered dynamics, including exploration projects, and

179 See: Case Study 1: Vancouver Island's Eagle Rock Quarry Project: A 70 Modern Industry-First Nations Mining Partnership Between Polaris 71 Minerals Corporation, the Hupacasath First Nation, and the Ucluelet First Nation for examples and discussion. Pages 54-58. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

- Traditional alliances and enmities - Local business opportunities • Potential exploration phase • Employment rotation to

- Personality and issue-based H Identify needs, including contracting opportunities, including accommodate First Nation needs and

coalitions and conflicts J Projected product and - Road work preferences - Decision-making process and time service needs - Earth moving • Housing, food service, and recreation

frame J Product quality and service - Snow clearing • Safety, health, and hygiene • Confirm availability of Traditional performance requirements - Line cutting • Workplace language policy Ecological Knowledge and other local • Jointly prepare a Memorandum of - Geochemical sampling • Subcontractors’ obligations knowledge Understanding (MOU) to document - Environmental sampling • Labour relations • Determine level of awareness and the consultation that has occurred - Camp construction • Preferential First Nations contracting interest in future Impact and Benefit and what has been decided - Catering policies and practices Agreements (IBAs) if project • Discuss possible future Impact and - Expediting • First Nations notification of business progresses to more advanced phases Benefit Agreements (IBAs) and - Fuel supply and contracting opportunities provision for transition to more - Reclamation • Provision of seed capital and Possible Outcomes advanced programs (advanced - Assisting in environmental equity/credit to First Nation suppliers, • Establish contact exploration, bulk sampling, feasibility assessment, stream-sampling, fish service providers, and contractors - Start getting to know each other studies, construction, operations, etc.) and wildlife assessment, and • Land disruption payments - Start developing a relationship if they become warranted archeological overview assessment • Production payments based on respect, understanding, - Minimize impacts on fish, wildlife, • Support for government resource trust, and honour Possible Discussion Items for and water revenue sharing discussions • Agree to hold future meetings Future Meetings - Land interruption fees (general to • Provision of expert advice - Develop agenda outlines • First Nation training and hiring the First Nation, corporately) • Information flow and interpretation, - Establish tentative schedule issues, including - Trap line interruption fees (may be including • Jointly develop appropriate - Joint funding applications for specific to individual Band members) - Liaison between First Nation and procurement protocols as government training support - Document the discussion and any Company regarding project applicable180, addressing - Company to assist First Nation(s) agreement reached with a management and First Nation - Labour force issues, including with cost of attending Mining Memorandum of Understanding participation (MOU) • Identification, protection, and H Hiring policy and employment Industry Training Courses policies - Company’s best efforts to employ - For more advanced exploration and conservation of cultural, heritage, pre-feasibility work, consider an and archaeological sites and artifacts J Preferred Aboriginal First Nation members H Impacts and Benefits opportunities • First Nation contracting and • First Nation involvement in Agreement (IBA) - Baseline environmental studies H First Nation community skill subcontracting issues, including development and training - Company’s best efforts to contract - Identification of heritage and IBA Discussion Issues archaeological sites J Bursaries and Scholarships with suppliers owned/controlled by • Research and development H Seasonal and subsistence shift or affiliated with the First Nation • First Nation preferential hiring scheduling issues - First Nation Liaison Person • Training and commitment to • Co-ordination with other area - Contractors also to use best efforts promote qualified First Nation developments - Company to submit names of members • First Nation concerns regarding successful contractors • Company support for scholarships environment protection and wildlife - Company to advise timing of work and bursaries disruption, including wildlife/habitat of proposed programs and provide disruption compensation schemes lists of jobs and contracts

180 See: Case Study 3, Alaska’s Red Dog Mine: Co-operative 72 Development by Teck Cominco, the Northwest Alaska Native 73 Association (NANA) and the State of Alaska, pages 61-64, and Mclean and Hensley, Mining and Indigenous Peoples: The Red Dog Mine Story, Ibid, for excellent review of progressive employment policies and practices in a very demanding environment. MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

• First Nation access to facilities Practical Advice - Visit the coffee shop provided for the development, - Chat with Elders and other members including Some Do’s and Don’ts of the community - Airstrips, docks, and roads - Ask First Nations how they want to - Health and recreation facilities Here are some things to do and not to be consulted • First Nation confirmation of do when working with Aboriginal - Ask First Nations to define their adequacy of consultation and People: needs and expectations accommodation measures - Approach issues with a joint • Arbitration and amendment Do’s problem-solving perspective provisions • Research the community and • Know the difference between a Band governing parties before going to Chief and a Hereditary Chief before the community you go to a First Nation community • Take training on “Working Effectively • Be prepared to meet both Band with Aboriginal People” or attend a Chiefs and Hereditary Chiefs on the similar workshop before you start same day and in the same meeting • Express your thanks for the invitation • Be prepared to say that you are into their traditional territory. For having a problem and that you are example, “I would like to thank the there to get some thoughts from ______First Nation(s) for them on how to solve it agreeing to meet with us and • Avoid ‘Power Suit’ formal dress for inviting us into your traditional community meetings territory.” - Band offices generally have more • Use caution when shaking hands casual dress policies than those of - The typical North American elbow corporate Canada grab and double pump may not be • Anticipate questions that First needed or appreciated Nation(s) may have of your • Be aware of the importance many organization and prepare answers to Aboriginal cultures attach to body those questions language and non-verbal • Honour all your agreements, communication especially your oral agreements - Expect to be observed very closely in - Traditionally, these are oral societies everything that you do H Oral agreements are as • Commit to building a real working important in Aboriginal relationship communities as written - Seek to make contact and to meet agreements at a time when you don’t need something - Have Company management spend some unstructured time in the First Nation community

74 75 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

• Be flexible and patient • Say “Some of my best friends are …” Corporate Best Practices: Allocate Resources to Aboriginal - Understand that it is not uncommon - “… Aboriginal People” A Checklist Relations Initiatives for the Band office to close on very - “… Indians” • Appoint an Aboriginal Affairs short notice for various reasons; for - “… belong to First Nations” Coordinator The following checklist has been example • Ask if they know well known First • Create and staff an Aboriginal reproduced courtesy of Pam Sloan and H A wedding or a death in the Nations personalities; for example Relations Unit (if program size community - Chief Dan George Roger Hill, from their book Corporate warrants) - Call ahead to confirm your meeting - Sitting Bull’s descendants Aboriginal Relations181. While oriented • Define mandate and reporting time • Say that you prefer a municipal style to larger corporations, this checklist relations to senior management of government also sends valuable messages to the • Define linkages to and responsibilities Don’t • Say, “We should all be equal.” junior exploration sector, the small and of rest of organization • Say that you are there to seek their • Ask, “Are you going to be Canadian medium-sized business community, and First Nation stakeholder input when this is all over?” Integrate Aboriginal Relations into • Need or expect direct eye contact the public at large. • Say that you have a time line and Business Planning Process that they have to meet it • Feel that you must answer or • Set realistic long-term goals • Tell the First Nation what dates are interject whenever there’s an Build Organizational • Allocate responsibility for goals available in your calendar for a interlude in the conversation. Commitment among relevant business units meeting Aboriginal cultures often use silent • Set annual targets at business unit - Instead, ask which dates would moments in conversation as Develop and Adopt a Formal Aboriginal level work best for them opportunities to formulate thought Policy • Establish accountability framework • Go to them with a completed draft - Instead, focus on ensuring that the • Appoint a policy development • Establish monitoring and reporting plan for your project before speaker has finished before you coordinator/project team system consultation has started contribute to the conversation • Establish a business case for • Integrate accountability into • Fly in on the Company helicopter at Aboriginal Relations performance review process for 9:45 for a 10 o’clock meeting, and • Develop a policy in conjunction with managers out again at 11:45 to make your next Aboriginal and other stakeholders meeting • Obtain confirmation that the policy Build Knowledge and Understanding • Expect that a consultation approach accords with the present state of the about Aboriginal Relations used successfully with a particular law tribe for a particular issue will • Communicate policy/program/results • Obtain board level approval for policy necessarily succeed in subsequent to employees on an ongoing basis • Obtain endorsement/support of negotiations with that tribe on other • Communicate policy/program/results union matters (even if the issues are similar) to Aboriginal stakeholders on • Hold formal launch to adopt the • Confuse potluck with potlatch ongoing basis policy • Confuse reservations with reserves • Communicate policy/program/results to • Communicate the policy to internal • Refer to “Indians” or “Natives” external stakeholders on ongoing basis and external audiences - Instead, use “Aboriginal People” or • Provide Aboriginal awareness • Sustain senior management role in “First Nations” training for managers promotion of the policy • Provide Aboriginal awareness training for employees

181 Sloan, Pamela & Roger Hill, CORPORATE ABORIGINAL RELATIONS: 76 BEST PRACTICE CASE STUDIES, (Toronto: Hill Sloan Associates Inc., 1995) 77 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

EDUCATION AND TRAINING • Provide summer employment • Keep Aboriginal organizations benefits of workforce diversity opportunities informed about job opportunities • Use Aboriginal employee advisory Encourage Young People to Stay in • Offer short-term work assignments • Use available inventories of groups as resource to management Aboriginal candidates • Facilitate development of Aboriginal School ENHANCING EMPLOYMENT • Promote development of inventories employee support networks • Establish relationships with schools OPPORTUNITIES of Aboriginal job candidates • Encourage buddy systems for new with large Aboriginal populations Aboriginal employees • Provide information to students Facilitate Access to Entry-Level about education and career options Develop Aboriginal Employment Positions ABORIGINAL BUSINESS • Provide role models and mentors for Strategy • Ensure Aboriginal representation in DEVELOPMENT Aboriginal students • Establish advisory committee or • Develop educational experience special task force recruitment pool • Include Aboriginal people in Develop Procurement Policies programs • Ensure participation of Aboriginal selection process • Offer short-term work experience and other stakeholders • Set long-term goals for Aboriginal • Use Aboriginal internship programs programs to students • Set long-term goals for Aboriginal business participation • Negotiate hiring preferences in employment • Set annual targets for Aboriginal collective agreement Provide Education/Training • Set annual targets for Aboriginal business participation • Negotiate apprenticeship Opportunities and Support employment • Adopt procurement policies that opportunities in collective agreement target Aboriginal suppliers • Develop/support access programs for • Identify barriers to Aboriginal • Create in-house training positions in • Set aside some contracts exclusively post-secondary education employment technical occupations for Aboriginal business • Provide educational • Determine necessary modifications to • Create in-house training positions in • Allocate set asides through awards/scholarships in relevant corporate human resource policies skilled trades negotiated/restricted tendering disciplines • Define special measures needed to processes • Develop access programs for improve employment opportunities Encourage Career Development • Provide long-term supply contracts to employer-based training programs • Develop action plan • Provide in-house basic education and promote business • Develop/support access programs for • Establish accountability framework literacy program formation/expansion skilled trade training programs • Adapt corporate training programs • Require major suppliers to provide • Provide information on skilled trade Target Recruitment Initiatives to ensure cultural sensitivity opportunities for Aboriginal qualification/certification process • Target outreach activities to • Ensure Aboriginal access to participation • Develop/support training programs in organizations with high Aboriginal management/supervisory high skill occupations populations development opportunities • Visit Aboriginal communities and Remove Procurement Barriers • Implement succession planning and Offer Pre-Employment Programs training institutions • Break contracts into smaller packages ensure Aboriginal representation to provide access to small business • Develop/participate in job-readiness • Encourage/facilitate visits by • Promote and facilitate mentoring • Ensure that Aboriginal contractors training programs Aboriginal people to local are on bid lists • Link training to concrete job offices/workplaces Create a Positive Working Environment • Provide early notice to Aboriginal opportunities • Network with Aboriginal education • Implement measures to eliminate communities/businesses on upcoming • Guarantee employment for successful and employment counsellors harassment, discrimination, and contracts program participants • Form partnerships with Aboriginal racism • Clarify procurement processes for • Offer employment skills workshops communities and service organizations • Promote both the social and business Aboriginal businesses

78 79 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK

• Use pre-qualification process to COMMUNITY RELATIONS Develop Collaborative Initiatives promote competitiveness of bids • Establish joint planning and decision- • Inform potential bidders about Establish Communications with Local making mechanisms legal/safety/regulatory requirements Communities • Establish joint problem solving/ • Assist potential bidders to meet grievance resolution processes • Establish a community liaison legal/safety/regulatory requirements • Enter into integrated agreements for committee • Waive bid and performance bond socio-economic development • Establish Aboriginal advisory councils requirements, if feasible • Establish education and training • Consider representation of partnerships community leaders on Board of Promote Supplier Development • Establish employment development Directors • Develop inventories of local partnerships • Provide ongoing information Aboriginal contractors and businesses • Establish business development through Aboriginal affairs group and • Help Aboriginal businesses to partnerships other staff compete effectively for contracts • Establish joint environmental • Provide communication materials in • Foster development of management initiatives variety of formats and local skills in Aboriginal businesses • Enter into collaborative resource languages • Encourage joint ventures with non- management initiatives Aboriginal business to build capacity Make Resources Available for • Provide subsidies and financial Community Development assistance • Debrief unsuccessful bidders to help • Assist local communities to define improve future bids their community development needs • Create joint opportunities to • Assign staff to work with community promote development of large on economic/business development Aboriginal suppliers strategy • Open up corporate training Enter into Cooperative Business courses/workshop to community Ventures representatives • Loan equipment for community • Enter into cooperative business projects ventures with Aboriginal • Provide funding for community organizations infrastructure • Structure business ventures to ensure • Sponsor and promote community substantive benefits for Aboriginal events and projects partners • Allocate corporate donations to • Partner with Aboriginal development Aboriginal communities agencies to develop commercial • Promote recognition of Aboriginal complexes achievement in broader community

80 81 MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK NOTES

Useful First Nations & Native Investment and Trade Association Mining Contact Information http://www.native-invest-trade.com

Aggregate Producers Association of Northeast Aboriginal Business Centre British Columbia http://www.aboriginalbusinesscentre.com/ http://www.gravelbc.ca Prospectors and Developers Association Assembly of First Nations of Canada http://www.afn.ca/ http://www.pdac.ca/

Association for Mineral Exploration Union of BC Indian Chiefs British Columbia (AME BC) http://www.ubcic.bc.ca/ http://www.amebc.ca

BC Government First Nations Consultation and Other Information http://www.mcaws.gov.bc.ca/aboriginal_ dir/guide.htm

Canadian Aboriginal Minerals Association http://www.aboriginalminerals.com

Canadian Business for Social Responsibility (CBSR) http://www.cbsr.ca

First Nations Summit http://www.fns.bc.ca

Indian and Northern Affairs Canada http://www.ainc-inac.gc.ca/index_e.html

Indian Resource Council of Canada http://www.indianresourcecouncil.ca

Mining Association of BC http://www.mining.bc.ca/

Mining Association of Canada http://www.mining.ca/

National Aboriginal Business Association Tel: 604-275-6670; 1-800-337-7743

82 $ +10taxes

MINERAL EXPLORATION, MINING AND ABORIGINAL COMMUNITY ENGAGEMENT: A GUIDEBOOK the Association for Mineral Exploration British Columbia would like to thank our generous sponsors

guidebook Mineral Exploration, Mining and Aboriginal Community Engagement By Dan Jepsen, Bob Joseph, Bill McIntosh, Bruce McKnight

Presented by:

In association with:

Association for Mineral Exploration British Columbia (AME BC) Suite 800 - 889 West Pender Street | Vancouver, BC V6C 3B2 Phone: 604-689-5271 Fax: 604-681-2363 www.amebc.ca Email: [email protected]