The Duty to Consult and Environmental Assessments: A Study of Mining Cases from across Canada

Abstract

In 2004, two pivotal court cases, Haida First Nation v. British Columbia (Minister of Forests) and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), were heard by the Supreme Court of Canada. These two cases were fundamental in establishing the duty to consult and accommodate Aboriginals, whereby the Crown, as represented by Canadian government agencies, must consult with and potentially accommodate Aboriginal interests when their rights may be infringed upon. This need for government consultation with Aboriginals raises important questions about the role of environmental assessments (EAs), where government agencies must assess the impacts of proposed projects and consult with members of the public, including Aboriginals. This thesis examines the relationship between the duty to consult and the EA process, and how well the duty to consult may be met through EAs. The potentially complementary role of impact and benefit agreements (IBAs) is also examined where possible. To accomplish this, the literature surrounding the duty to consult, EAs, and IBAs was analyzed to determine the best practices for each of these elements. From these best practices, a framework for analysis was developed and applied to a selection of 22 mining projects from various jurisdictions across Canada where EAs had been conducted. The cases were then analyzed to determine how well they conformed to the best practices established in the literature review. The results indicate that the territorial EAs have conformed better to the best practices for both the duty to consult and EAs than most other EA regimes in Canada, particularly the federal EA process. As well the results suggest that greater attention to direct socio-economic impacts and legacy effects of non-renewable resource extraction projects would allow for not only a healthier environment, but also better accommodation of Aboriginal interests and concerns.