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Despite this, Canada’s institutional
structures for participation and decisionmaking on natural resource and mining
projects (in particular in environmental
assessment practices) go a long way to
reflecting the spirit of FPIC. Indeed, the
Supreme Court’s ruling in Delgamuukw v
British Columbia (1997: 3 SCR 1010) stated
that, in the case of titled lands, the government’s duty to consult is often ‘significantly
deeper than mere consultation’ and on a
spectrum that includes the right to ‘full
consent’.
Under Comprehensive Land Claims
Agreements (CLCs) provisions are made for
self-governance, the protection of traditional resource use and co-management by
aboriginal communities to manage
resources and plan development through a
number of ‘boards’– a result of Canada’s
indigenous land claims process.3 The boards
are allowed to create their own rules and
policies, giving them greater flexibility in
institutional design. They are co-managed
with equal representation of government
and aboriginals and clear processes for
incorporating different knowledge types.
The water and land boards, for example,
have adopted traditional knowledge polices
for use within environmental assessments
(see Box 1).
Implementing the ‘spirit of FPIC’
In Canada’s North West Territories, where
both minerals and aboriginal communities
are prominent, the Mackenzie Valley
Resource Management Act (MVRMA) is
charged with implementing the CLCs and
holds responsibility for reviewing and
approving land-use permits. The structures
it adopts aims to decentralise decisionmaking and allow for cooperation between
aboriginals, governments and private
actors.
Applications for mineral investments
are submitted to the board, who then
distribute them to the potentially affected
Box 1: Examples of how traditional
knowledge is incorporated into
environmental assessments
Climate – time/dates as to when the project will
occur, and what condition might be expected (e.g.
when creeks and lakes freeze up, when the ground is
frozen enough to support equipment).
Vegetation – lists types of vegetation in the area.
What is the vegetation used for? Is it a local berrypicking area?
Water use – potential impacts of changes in quality
or quantity (e.g. in small lakes used for camp water,
the drawdown might be such that there will not be
enough water left for plant or fish life).
Stream flow – affects stream crossings, freeze-up
and spawning areas (e.g. will the stream flow be
affected by ice bridges, or permanent bridges?)
Importance of site-specific areas – why land is
important, sacred sites, legends, beliefs, need for
respect (e.g. Red Dog Mountain in Tulita District is
considered a sacred site by the Mountain Dene).
Traditional use – how might fishing, trapping and
cabins be affected?
Source: Armitage (2005).
communities. These communities are given
30 to 45 days to provide comments and
recommendations, much of which is
supported by traditional knowledge. The
applications are reviewed by the board
based on these inputs, as well as information from technical experts looking at
environmental and economic considerations. As the board has equal representation
of aboriginal communities and government,
these evaluations take place on the basis of
values, information and experiences that
come from traditional practices (see Box 1).
Projects with significant environmental
impacts undergo further assessment by the
Environmental Impact Review Board,
which is government led but has equal
representation from both government and
indigenous peoples, who also approve the
Chair. Projects with impacts for the wider
population go to public hearings to get
broader inputs. Final decisions are,
however, made by the Minister of Aboriginal Affairs and Northern Development
3 Canada’s land claims process aims to enable the Indians, Inuit and Métis to obtain full
recognition of their rights under treaties or as the original inhabitants of what is now Canada.