Resource firms move ahead with UNDRIP compliance as B.C. legal changes lag

While British Columbia slogs through reforms to comply with a United Nations resolution on Indigenous rights, the private sector has been quietly embracing the benchmarks of its own accord.

B.C. lawyer Merle Alexander said he had worked on two deals between First Nations and resource companies in the past year, both complying in large part with the UN Declaration on the Rights of Indigenous Peoples, which B.C. committed to adopting in 2019.

Alexander, who acts as general counsel to the B.C. Assembly of First Nations and also represents a number of individual First Nations, said the “pre-compliance” deals involved a mining firm and an LNG industry group.

“Those industries are making significantly more progress than the public process,” said Alexander, who is a member of the Kitasoo Xai'xais First Nation. “Because, in a way, it's sort of simpler because it's a bilateral process, and there's usually only a few parties involved in, say, an impact-benefit agreement negotiation.”

He said he can't disclose the participants in the projects on confidentiality grounds.

But last June, the Tahltan Nation, the province of B.C. and Vancouver-based Skeena Resources reached a historic, consent-based agreement that made the Eskay Creek gold and silver mine the first project to have permits authorized by a First Nation government.

Nalaine Morin, Skeena's vice-president of sustainability and the former lands director at the Tahltan Central Government, said the mining company had already been working with the First Nation for years on collaborative consent-seeking, laying the foundation that made the agreement possible.

In January, the three parties came together again to sign a process charter for the approval process of Eskay Creek. The charter establishes the Tahltan Central Government as a key player in environmental assessment and permitting.

Obtaining free, prior and informed consent of Indigenous communities regarding the use of their lands is a cornerstone of UNDRIP.

“That was basically from Day 1, ” said Morin, who is a Tahltan Nation member. “They signed some of the first agreements - exploration agreements, communications agreements - with the Tahltan Central Government,”

Morin said Eskay Creek is a redevelopment project of a “brownfield” site occupied by a previous mine, which came with pre-existing permits and an environmental assessment certificate. Skeena only needed to amend the permits to redevelop, but a consent-based agreement needed a new, full environmental assessment to be completed.

“Skeena agreed to do a full environmental assessment,” Morin said. “They could have done an amendment … I see the work that we are doing today and into the future as redefining what constitutes sustainable mining in Tahltan territory.”

With Morin now a Skeena executive, she said the inclusion allows the Tahltan community to control the scope of projects involving its resources and lands like never before.

“I think we are going to end up with a project that is mindful of a lot of the values and the needs that Tahltan have as we design the project,” she said. “Whereas, quite often, nations have to do that work after the fact. They receive the application to review. We are following a specific process that is inclusive of these principles.”

Skeena isn't alone. Brian Sullivan, CEO of Conuma Resources based in Tumbler Ridge, B.C., estimated that more than 50 per cent of his duties now involve working on compliance with UNDRIP, First Nations communities' interests and regulatory compliance.

Conuma, which operates three coal mines in northeastern B.C., works closely with four First Nations because its mines operate on Treaty 8 land, referring to territory covered by the 1899 agreement.

Sullivan said Conuma has impact-benefit agreements with all four nations it works with, but the company has been moving away from those types of deals because they are seen as “the bare minimum” for a company.

Instead, Conuma has now appointed an executive full time to Indigenous affairs who sits on an expenditure board that represents First Nation interests for every capital spending item involving the company.

“Without that fundamental respect from the starting point, we don't have that licence to operate in the Treaty 8 territory,” Sullivan said. He added that “we recognize that we have a period of stewardship on that land and that it takes the co-operation of the resource companies, and the nations, and the regulators in order to do it correctly.”

Alexander said that business interest - namely, revenue - is a key reason private adoption of UNDRIP outpaces that of the provincial government.

By getting ahead of regulators in reaching deals with Indigenous governments, companies can speed up processes and prevent costly delays or other disruptions.

“The companies are doing it for self-interest because they don't want to be dictated (to),” Alexander said.

“Companies that have that sort of intelligence and foresight are just sort of rethinking what they need to do more (of) in exchange for a much higher level of legal certainty.”

Alexander said that in contrast, changing entire suites of laws involving multiple stakeholders across society takes time.

The province has long indicated it would like to reform the Mineral Tenure Act - which determines where mining can take place in B.C. - to comply with UNDRIP. Alexander said he was hopeful that process will only take another year or so to complete.

But he said B.C. has hundreds of statutes to look through, and only eight to 10 have been modified to be consistent with UNDRIP, with another 42 “in play.”

“I'm not optimistic that it will be a fast process,” he said of full UNDRIP adoption by the province. “I am hopeful mostly because, in a way, First Nations themselves are just very strong advocates for their own rights. Like, I am optimistic and knowledgeable that we will achieve the legal reform that we're seeking.”

Morin agreed, saying that momentum is now on the side of more UNDRIP adoption.

“I think it's always important to be mindful of our changing landscapes,” she said. “But right now, we are supportive of, and feeling very positive about, the success we have achieved to date … And as our team continues to grow, the team is of a similar mindset. It's a really cool place to be.”

This report by The Canadian Press was first published March 12, 2023.