The KI case resonates with the view of many indigenous peoples that prior to expecting them to
engagement with corporate actors the State must first enter into good faith dialogues with them
in order to recognize their territorial and self-governance rights. Another issue which the KI case
highlights is the State’s exposure to corporate lawsuits as a result of its failure to require indigenous
peoples’ consent prior to issuing leases over their lands. Platinex filed a law suit against the State
for 70 million dollars to cover its investment loss as a result of the State’s failure to consult with the
KI. The State ultimately ended up having to compensate two mining companies a total of 8.5 million
Canadian dollars, in order for them to abandon their claims in KI territory.
Canadian negotiation approaches – building leverage for consent
requirements
The Kaska Dena, Lutsel K’e Dene or Tłı̨ icho First Nations have a long experience of dealing with
the mining industry, and are at any point in time each engaged with up to 30 mining companies. This
has provided them with useful experience in negotiations and engagements with companies, from
which useful lessons can be drawn.
Kaska Dena
The case of the Kaska Dena First Nation, whose territories are in Yukon, Northwest Territories and
British Columbia, Canada, offers an interesting insight into a situation where a Chinese company,
Silvercorp, has voluntarily signed a legally binding contract requiring consent at the exploitation stage,
should the mine proceed from exploration to production. The agreement followed an accelerated
negotiating process conducted from December 2009 to May 2010 and included a resource funding
agreement to finance the negotiation process. In effect consent was provided for exploration as a sort
of trade-off for the subsequent consent requirement at exploitation. If during the exploration phase,
legitimate concerns ‘arise in environmental studies and traditional knowledge study, [the Kaska
Dena] retain their right to oppose the Project’.133 Under the agreement the consent requirement can
be triggered by a technical environmental impacts study, or by a traditional knowledge study. The
latter is conducted under a stand-alone traditional knowledge protocol. This protocol elaborates
a community-owned traditional knowledge governance process and provides for investment in a
traditional knowledge database.134
This agreement was reached in a context where the company felt relatively confident that it
would be able to obtain consent. The Kaska Dena case is also interesting because, in addition to
negotiating with companies, they have (like many indigenous communities) engaged in adversarial
approaches with them. In one notable case, the December 2012 decision of the Yukon Court of
Appeals challenging the “free entry system”,135 has had the potential effect of triggering legislative
reforms, which address deficiencies in corporate engagement with First Nations. The Kaska Dena
First Nation use a series of legal templates, which define a step-by-step engagement process,
rather than a single policy or FPIC protocol in their engagements. They have up to 30 companies
engaging with them simultaneously.
Lutsel K’e Dene First Nation (LKDFN)
The Lutsel K’e Dene First Nation (LKDFN) are part of the Akaitcho Treaty 8 Nations located in Canada’s
Northwest Territories. They are in a somewhat similar situation to the Kaska Dena, as neither First
Nation has a land claim agreement to act as leverage in their engagements with companies. As a
result companies are technically not obliged to enter into impact benefit agreements with them. The
LKDFN also use engagement templates which seek to use exploration agreements as the leverage
for pushing companies towards recognizing the requirement for consent for any subsequent
exploitation. They include a clause stating that companies agree not to begin commercial mining
within their properties without their prior consent, which is to be solicited through the negotiation of
an access/impacts-benefits agreement. To date they have been successful in getting companies to
commit to entering into impact benefit agreements, despite the absence of the legal requirement to
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Making Free, Prior and Informed Consent a Reality