What does sustainability mean in an industry built around the extraction of non-renewable resources?
That’s one of the questions Nick Smith asks his students to consider as the instructor for Allard Law’s Executive Learning Program in Mining Law and Sustainability.
Smith, who is of Plains Cree and European descent, is a lawyer at Miller Titerle Law Corporation. His legal practice involves supporting First Nations with natural resource development projects and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
In this Q&A, Smith explains what drew him to teaching and what lawyers and non-lawyers alike need to know to make better and more sustainable business decisions in mining.
What interested you about teaching this course?
NS: I did my law degree and a civil engineering degree at UBC, so I was intrigued to think about how I’d share my personal and professional experiences with learners.
My late grandmother was a residential school survivor and a member of the Ermineskin Cree Nation, a Treaty 6 Nation, and I come from European settlers on my mom's side of the family. As someone with mixed ancestry, two professional degrees and a career in law working with First Nations, I have a unique ability to walk in two worlds and see the perspectives of Indigenous peoples and the settlers to these lands.
One of the things I like most about teaching this course is leaning on my experiences to demystify what it means to create good partnerships. That starts from a place of understanding the position of Indigenous nations and their perspective on development. It's going to be different from nation to nation, and it needs to be done in a way that’s sustainable according to their laws.
What makes a mining project truly sustainable?
NS: This is a question that comes up a lot in the course, and there isn’t one definition of what makes a mining project “sustainable”. I use air quotes because it’s an open question whether a project can be sustainable when you’re utilizing non-renewable resources.
The question is really, “How can we do this as sustainably as possible?” That means considering objectives around environmental, social and economic sustainability, including the impact on the people, safety and human rights.
Different rights holders have different opinions on the importance of each of these priorities, all of which we have to consider throughout each stage of a mine’s lifecycle. Indigenous nations, government and industry need to come together to find the right balance that we as a society believe constitutes a sustainable practice.
What are some guiding principles that legal professionals should adopt when working with Indigenous Peoples and communities on resource extraction projects?
NS: Lawyers should understand the United Nations Declaration on the Rights of Indigenous Peoples, which serves as the legal and action-oriented framework for advancing reconciliation in Canada. You should also have a good understanding of the Crown's duty to consult and accommodate and the Truth and Reconciliation Calls to Action.
Whether you’re representing First Nations, industry or government, you should be aware of different consent-based agreements and impact benefit agreements, which create more certainty for projects by securing approval and providing meaningful benefits to First Nations.
Good relationships are critical, and companies need to approach First Nations with respect for their jurisdiction and decision-making authority. For legal counsel that's working on the industry side, my advice is to encourage clients to engage early and meaningfully partner with First Nations throughout each project. That's what First Nations are looking for.
In May, the SCC agreed to hear the Gitxaala case. How might this decision influence the future of mineral exploration in Canada?
NS: For many years, there have been serious concerns about the mineral exploration process. I could just go online and stake a claim to an area without ever having to consult with anyone about it.
Now that this case has made it to the Supreme Court, it’s going to create some certainty. If the SCC upholds the British Columbia Court of Appeal’s decision, that effectively makes online applications without consultation impossible, so there should be greater consultation obligations earlier in project exploration and development.
It may also change the mineral claim acquisition processes in BC and the rest of Canada, and it'll likely mean that consent-based agreements between First Nations, government and private resource companies will become more important than ever.
This course also looks at the threat that corruption poses to sustainability. How can lawyers help fight corruption?
NS: Corruption is a problem in Canada and globally, and systemic change needs to happen. The Nevsun Resources case is a prime example, involving modern-day slavery and serious human rights abuses.
Legal counsel has a responsibility to ensure their clients are in compliance with anti-corruption laws, but there’s also an opportunity for counsel to advocate for broader change in legislation, policy and industry practices. Canada’s Extractive Sector Transparency Measures Act, which requires many mining oil and gas companies to disclose certain payments to governments in Canada and abroad, is one example of how advocacy efforts helped increase transparency and curb corruption. This course does a good job of highlighting many of these recent efforts.
What's a positive change you've seen in the mining sector in recent years? And what would you like to see?
NS: Impact benefit agreements and consent-based agreements are becoming more common and are doing a better job of recognizing the rights of Indigenous nations, particularly in terms of their jurisdiction and decision-making authority. Industry is understanding the need for First Nations’ approval for their projects and is doing a better job of creating meaningful partnerships with First Nations.
As positive as that is, there's room for improvement. While we see industry adopting better practices, the Crown continues to struggle with meeting its commitments to reconciliation and the implementation of UNDRIP within Canada and BC. What we want to see is the meaningful recognition and implementation of Indigenous rights. That means recognizing First Nations as the decision-makers within their territories.
