The Tsilhqot’in Nation has announced the release of a draft Mining Policy of the Tsilhqot’in National Government (Policy). The release of the Policy on July 31, 2014 follows the June 26, 2014 decision of the Supreme Court of Canada (SCC) in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (Tsilhqot’in). In Tsilhqot’in, the SCC granted a declaration of Aboriginal title to the Tsilhqot’in Nation over an approximately 1700 sq. km tract of land within its traditional territory. This was the first time that Aboriginal title has been declared in Canada. See our article on this decision here.
The Policy is intended to provide guidance to industry and government seeking to undertake development work or stake claims within the traditional territory of the Tsilhqot’in Nation. Notable aspects of the Policy include:
- The Policy is referred to in its text as Tsilhqot’in Nation law and appears to apply broadly to all of the Tsilhqot’in Nation’s asserted traditional territory. No distinction is made between the application of the Policy to Aboriginal title lands and other areas of Tsilhqot’in traditional territory over which Aboriginal title has not been established.
- A key principle of the Policy is that the Tsilhqot’in Nation will consider development of mineral resources in its traditional territory, provided that the ecological and cultural values of the Tsilhqot’in are respected and that there are significant long-term social and economic benefits for Tsilhqot’in communities.
- Policy goals include minimizing negative impacts on the environment, cultural and spiritual sites, protecting and sustaining Tsilhqot’in culture, and maximizing benefits to the Tsilhqot’in Nation.
- The Tsilhqot’in Nation will:
- consider partnership and ownership opportunities with mining and exploration companies;
- require exploration agreements (for mineral exploration companies) and impact benefit agreements (for mining companies) prior to Tsilhqot’in giving approval of any exploration or mining project, and as the basis for granting its “free, prior and informed consent” for projects; and
- require resource revenue from mining projects.
- The Policy will be implemented through guidelines and template agreements that will direct engagement for industry proponents and agreement negotiations.
In Tsilhqot’in, the SCC stated that Aboriginal titleholders may control the purposes to which Aboriginal title land is put, however the SCC did not address the issue of law-making authority with respect to title lands. Presumably, the province will continue to have authority to regulate mining activities on Aboriginal title lands, provided that the Aboriginal group either consents to the activity, or if the activity constitutes an infringement of Aboriginal title, if it can be justified in accordance with the criteria set out in Tsilhqot’in.
Although the Policy is referred to as “law”, it may be more accurate to describe the Policy as establishing conditions for government and industry to obtain the consent of the Tsilhqot’in Nation to access its Aboriginal title lands for the purposes of developing subsurface resources. To the extent that the Policy purports to extend beyond the proven Aboriginal title lands to the broader traditional territory of the Tsilhqot’in Nation, there is currently no established legal authority through which the terms of the Policy could be enforced (such as requiring, at law, an impact benefit agreement as a precondition to development activities). Rather, as discussed by the SCC in Tsilhqot’in, in respect of lands where Aboriginal title has not been established, the well-known principles of consultation, and where appropriate, accommodation, continue to apply.
Finally, one important implication of the Policy is that it presumes that Aboriginal title necessarily confers the right to mineral resources located within Aboriginal title lands or that such rights otherwise remain with the Tsilhqot’in Nation. This issue was not addressed in Tsilhqot’in (which concerned forestry resources), and has not yet been definitively established at law.
The draft Mining Policy is available for consultation with the public, industry and government until September 30, 2014. According to the Tsilhqot’in Nation’s press release, comments may be submitted to TNGMiningPolicy [at] tsilhqotin.ca until September 30, 2014.