By Michael Ganley -- The Supreme Court has told Ottawa to consult with aboriginals before allowing development on their lands. Aboriginal groups say this duty is often unfulfilled, and lawsuits are being filed. Caught in the middle are companies trying to do business.

Aboriginal groups have a powerful new weapon in their efforts to have their voices heard. The Supreme Court of Canada has told Ottawa it must ensure aboriginal groups are consulted and accommodated before development proceeds. The “duty to consult” has unleashed a wave of litigation, catching juniors like North Arrow Minerals, which wants to drill in the NWT, in its wake.

Last spring, a small exploration company filed documents with the appropriate regulatory body in the NWT to look for lithium on the tundra northeast of Yellowknife. North Arrow Minerals wanted to put a 16-person camp near Aylmer Lake, not far from the Diavik and Ekati mines, and operate a diamond drill for the summer. The many levels of government that need to be notified – federal, territorial, aboriginal – were advised and the legislated review set in motion.

In July, after gathering the required information and opinions, the Mackenzie Valley Land and Water Board issued North Arrow a permit to operate. The Vancouver-based company – headed by Gren Thomas, discoverer of the Diavik mine – started to gear up for what the industry calls a “grassroots” operation. It’s the kind of early exploration that might, in many years, if they’re lucky and good, turn into an operating mine.

Then came the roadblock. Two Akaitcho First Nations – the Yellowknives Dene and the Lutsel K’e Dene – launched a lawsuit in the Federal Court of Canada against Ottawa, the land and water board, and North Arrow. The aboriginal governments argue their fundamental aboriginal rights – guaranteed under the highest laws of this land – were not being protected. They say they were not adequately consulted about North Arrow’s Phoenix project, which is on their traditional territory and might infringe on their aboriginal rights. They also say with the dismal caribou numbers coming out of the area, they’re concerned.

North Arrow had to shut things down. While the lawsuit is not really directed at them – the so-called “duty to consult” is the federal government’s obligation – the mining company’s plans are bound up with it.

The duty to consult on which the Akaitcho Dene are relying is cropping up in courtrooms across the country. In the Yukon, the Little Carmacks First Nation has taken the territorial government to the country’s top court, arguing the government failed to consult them about a land disposition in their traditional territory. And there have been so many cases in Saskatchewan, where minerals come under provincial jurisdiction, the government has set up a special ombudsman to provide a report in each case on whether the duty has been met.
The common thread among these cases is aboriginals blaming the federal government for failing to protect their aboriginal rights. But some observers say a very important but very narrow legal right is being used as a blunt political weapon.

Stuck in the middle are companies like North Arrow that say they are being asked to shoulder the burden and pay the cost of Ottawa’s obligation to consult. “From the company’s point of view, this is being downloaded to us with no clear set of guidelines or standards,” says Gordon Clarke, a vice-president with North Arrow. “If it’s the federal government’s responsibility, they should be looking after the monetary things that come along with it.”

Chief Ed Sangris of the Yellowknives Dene insists he’s not against mining – many people from his community make their living from it – but that he and his community needs more information. “[North Arrow] should have told us where they were going to drill so we’d know if there were any burial grounds or caribou migration routes or fishing spots that we want to protect for future generations,” he says. “The exploration companies should come to us and say ‘We want to drill in this area, do you have any concerns?’” To which North Arrow replies, “We did.” With its initial application to the land and water board, the company included a list of numerous attempts made to speak to or get together with the chiefs. The company’s list shows the two sides often missed each other, though the chiefs say their records differ.

The Akaitcho Dene also told North Arrow the company would have to sign an “exploration agreement” to secure their support for the project. An agreement of this sort might set out training and employment opportunities, as well as possible cash payments. There is no legal requirement that a company sign such an agreement, and the Akaitcho insistence on it brought them a reprimand from Indian and Northern Affairs Canada. “North Arrow Minerals made a number of efforts to meet with the Akaitcho Dene First Nations to discuss its proposed Phoenix Project mineral exploration program,” wrote Trish Merrithew-Mercredi, INAC’s regional director general, in a letter to the land and water board. “It is INAC’s expectation that Aboriginal groups will not frustrate reasonable attempts by companies to provide information about and discuss potential resource exploration and development activities. And that there will be recognition that the extent of consultation (conducted by both the Crown and the proponents) and, where appropriate, accommodation, will be proportionate to the potential adverse impacts on their established or potential Aboriginal and/or treaty rights.”

Despite claims made by the Dene leadership, the NWT and Nunavut Chamber of Mines has not endorsed any blanket exploration agreement. “My advice to members is not to sign an exploration agreement that’s open ended,” says Mike Vaydik, general manager of the Chamber. “If you can negotiate it to something that your lawyer can live with and you can live with in terms of cost, fine. But most of our companies are finding the costs ridiculous and some just give up.”

The NWT and Nunavut Chamber of Mines would like to see aboriginal groups come to the table with more realistic expectations. “You can’t expect a junior explorer to come to a meeting with the resources that Ekati or Diavik bring,” says Vaydik. “Before you even talk to a company, look them up on SEDAR [the electronic filing system for Canada’s securities regulators], and you’ll know how much money they have. Then don’t ask them for something that’s not doable.”
The Supreme Court’s decisions do make allowance for that kind of flexibility. The court relies on what it calls “proportionality,” meaning the amount of consultation required has to be related to the size of the project. Basically, BHP Billiton had to do a lot more consulting for its Ekati mine than North Arrow needs to do for its one-drill program.

Right now, Indian and Northern Affairs Canada – as the manager of lands and resources in the NWT – decides whether the duty to consult has been met. In North Arrow’s case, INAC told the MVLWB that it had.

James Lawrance, the director of aboriginal and territorial relations with INAC in Yellowknife, says the legal “duty to consult” is just one aspect of the department’s ongoing consultation obligations, and that those obligations stem many places: basic good governance, statutes, treaties, contracts and the constitution. He doesn’t want the section 35 rights to overshadow the wider picture.

“The Crown in its special relationship with aboriginal people has a responsibility – as do the aboriginal people – to reconcile the interests of Canada and Canadians with the unique and distinct interests of the aboriginal people or group in question,” he says. “Consultation about the impact of any particular Crown decision on the existing or potential rights is only one component of that reconciliation and it’s a bit like a snapshot in time.”
Lawrance says the government accepts that the duty to consult is that of the Crown’s, and that ultimately the Crown must make sure it happens. But he says it’s also clear that consultation is a long and complex process involving the various levels of government and developers. “It’s become very clear to everyone that the better work proponents and industry do up front– in community relations, aboriginal relations, public relations – the easier it is for government and the aboriginal groups to ensure that they’re able to fulfill the consultation obligations on both of them.”

The challenge of taking the Supreme Court’s lofty ideals and making them work at ground level is not unique to the NWT, but it is exacerbated here. Amongst a patchwork of settled and unsettled land claims, it’s difficult to know the extent of existing or potential aboriginal rights, making the duty to consult a moving target.

The problem is further complicated by the ongoing difficulty aboriginal groups have finding the money and human resources to consider every application that comes forward. While this past season may not have seen too much work due to the global recession, it’s just a matter of time until everything heats up again.
Ensuring that aboriginal groups have the capacity to participate meaningfully in consultations is part of INAC’s duty. The department and the territorial government have, for years, funded the Interim Resource Management Assistance program, which gives money to aboriginal groups in areas with unsettled land claims (the Akaitcho and Deh Cho regions of the NWT) to enable them to participate in consultations of all types. With a budget of $1.2-million per year, eligible organizations are given per capita funding and can apply for more if that base funding is not enough. But some groups are clearly trying to find additional sources of income, and they don’t all pass the smell test.

In March, North Arrow received an e-mail from the Lutsel K’e Dene, which included a list of 12 protocols that must be met before any permit would be approved by the first nation. The protocols include “frequent” site visits for community members, employment and training opportunities and archaeological studies, with all costs to be borne by the company. The 11th protocol required North Arrow to “contribute” $30,000 to commence the protocols. Finally, the e-mail included a $20,000 budget for a day of meetings.

And all of this money was expected for what can only be called a “modest” exploration program. North Arrow intended to take a single drill onto the claim block during the summer drill season with a total budget of $450,000. The situation in the NWT is also vastly complicated by the caribou numbers. The Akaitcho Dene are concerned about cumulative effects of exploration and mining that has taken place in their traditional territory in the last 20 years, including the ongoing operations of two huge diamond mines and an annual winter road. The most recent territorial government numbers say the Bathurst caribou herd has been decimated, declining from 128,000 to 32,000 in the last three years. In 1982, the herd numbered 472,000. “It’s pretty scary how [the mining activity] affects the migratory animals like caribou,” says Sangris. “It just ripples down right from exploration to the time you get your product to the market.”

For now, North Arrow will sit on the sidelines while the legal system groans along. With caribou numbers, financial issues, unsettled land claims and constitutionally-protected aboriginal rights now on the table, the company will have to aim for progress on some of its other projects: Phoenix is unlikely to rise anytime soon.