prior to commencing mining operations. Under the Tłı̨ icho Land Claim and legislation and under the
Mackenzie Valley Resource Management Act, the Tłı̨ icho Nation has the right to accept, modify or
reject the decisions made by the regulatory agency or environmental assessments. This is the only
case in Canada where this authority has been spelt out in legislation. These powers are not held by
other First Nations in the same region due to the fact that they have not yet completed land claim
negotiations. Any development in the lands of the Tłı̨ icho which is reviewed following the Mackenzie
Valley environmental assessment regulatory process, comes to the Tłı̨ icho government. The Tłı̨ icho
hold the decision-making authority to accept or reject the recommendation of the regulatory body.
They are currently exercising this decision–making power in the context of a January 2013
recommendation by the Mackenzie Valley Environmental Impact Review Board that, subject to
compliance with certain measures, a mining project should be authorized in their territories. One of
the measures is the establishment of a cultural camp, funded by the company, for indigenous ‘handson’ monitoring of the mine operation, should the project proceed. The Tłı̨ icho are consequently
in the position of having to decide to accept, reject, or accept with further conditionality, this
recommendation. The case represents a tangible example of a consent process in operation. It is
the first time that the Tłı̨ icho First Nation will exercise these decision-making powers over a mining
project in accordance with its own government, assembly and constitution, all of which are premised
on indigenous perspectives. During the environmental assessment process the Tłı̨ icho had two
agreements negotiated with the company – one to fund their own technical studies, and the other to
fund traditional knowledge research.
The Tłı̨ icho have extensive experience of engaging with mining companies. This includes agreements
which pre-date their land claim agreement, and were excluded from its scope, as well as engagement
with other companies which have subsequently sought entry into their territories. Similar to the
Kaska Dena and the LKDFN, they have followed the approach of refining their engagement with
mining companies based on practice, as opposed to the creation of an all-encompassing mining
policy or protocol. In place of a policy they send customized letters with guidance to prospective
companies, and provide them with advice in the form of meetings and presentations, attempting to
engage them as soon as they enter their territory. One of their reasons for not choosing the policy
route is their view that mining majors and juniors cannot be treated in the same manner. The Tłı̨ icho
have realized that dealing with mining companies is a full time job, and to this end established the
Kwe Beh Working Group in 2010. The Group reports to the Tłı̨ icho Chief Executive Council, and
seeks to give advice and direct mining companies from the outset of projects. It has adopted a
particular focus on ensuring that the First Nation themselves, and not external consultants, conduct
impact assessments.
Observations
The experience of both Kaska Dena and the LKDFN is illustrative of a trend towards a transition
from a confrontational relationship with the industry, to one which is more cooperative and based on
processes defined by, and agreed with, indigenous peoples. In at least one incident this model of
engagement has led to a contractually binding consent requirement for exploitation. It consequently
addresses arguments which are made against consent on procedural and practical grounds by
illustrating that seeking and potentially gaining consent through processes based on indigenous
peoples’ guidelines and template agreements is possible. The current template agreements
which these First Nations have developed seek to leverage exploration for subsequent consent
based engagement. The First Nations’ success in realizing a commitment to obtain consent at this
exploitation stage provides a solid basis for arguing that consent can, and should, also be sought at
the concession seeking and exploration stages.
However, most companies have yet to transition to a model of engagement premised on respect
for First Nations right to withhold consent. The lesser standard of negotiating and entering into
Impact Benefit Agreements is instead more widely adhered to. This model can potentially bring
some benefits to communities. However, it also constitutes a significant limitation on the exercise
of indigenous rights. The experiences of these First Nations in negotiating such agreements, and
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Making Free, Prior and Informed Consent a Reality