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One of the newest and most rapidly developing areas of the Canadian legal system is aboriginal law.
If you think about it, it’s downright bizarre that this should be “new.” The documents that underpin the legal relationship between First Nations and the British Crown date back centuries. For whatever reasons, the court rulings that define the current legal relationship are just a few years old.
With so many Canadian mining projects on or near aboriginal territories, this has tremendous legal consequences for mining companies.
The law is simple to state, but hard to implement. First that easy part, stating the law: If you want to develop a mine any place that affects a First Nations community or its land rights, the Crown has a duty to consult with that native community before the project gets a green light.
Now the hard part: trying to figure out what consultation means. How much consultation is needed before the legal duty is satisfied? And since it’s the Crown that holds the duty to consult with the native band, why is it that it’s the company that winds up having to do all the work?
Those are open-ended questions. Many mining executives are frustrated by this lack of certainty. A regulatory process, such as environmental assessment, at least comes with a rule book.
The scope of the duty to consult is a judgment call, and there’s no magic formula that tells you when you’ve crossed the finish line and satisfied the duty.
“That causes clients a great deal of grief,” says Richard King, a partner who practises energy and environmental law with Norton Rose Canada LLP.
For executives, there is an even more frustrating thing: The duty to consult is not the same thing as a right to approve.
It is technically and legally possible for a mining company to secure full legal access to the property, even though a local native community remains steadfastly opposed to the project.
“The law has been crystal clear that an obligation to consult doesn’t confer a veto on an aboriginal group or a First Nation. Nor does it impose a requirement to agree,” says Keith Bergner, a partner at the Vancouver law offices of Lawson Lundell LLP who advises clients on aboriginal law and regulatory matters.
We do have rule of law in Canada, and those with full legal rights do have access to the courts to enforce them. The rule of law either means something or it doesn’t. But good business people should know how to pick and choose their battles. Clinging to a purely legal strategy may be shortsighted and it may be a strange business strategy. There are too many projects chasing too few investment dollars for a stubborn legalistic approach to make any sense.
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