5. Inuit Rights to Consultation and Consent – Full Finding
On-going consultation with Inuit and other stakeholders is a critical component of respecting human rights. The concept of Free, Prior and Informed Consent (FPIC) has not been formally recognized in Canadian law or in the corporate policies of Baffinland and its parent companies. However, there is a strong legal framework for consultation with Inuit in Nunavut. Inuit rights have largely been protected to date as a result of the requirements of the Canadian Constitution and the Nunavut Lands Claim Agreement. A key aspect has been the impact review process by the Nunavut Impact Review Board that provided a process for informed discussion and community input. The requirement for Baffinland to negotiate an Inuit Impact Benefit Agreement with the Qikiqtani Inuit Association also provides a process for Inuit to provide their consent about how the mine will be developed.
International standards for consultation with Inuit
Consultation is a fundamental human rights principle and a leading indicator for respecting a wide range of human rights. In addition, free, prior and informed consultation and consent are fundamental components of indigenous peoples rights, including their right to self-determination and their right to participate in the exploration and exploitation of natural resources on their lands and territories.
Principles relating to good faith consultation with indigenous peoples have been a feature of international law and policy for many years. However, since the adoption of the United Nations Declaration of the Rights of Indigenous Peoples in 2007, the principle of free, prior and informed consent (FPIC) is increasingly recognized by governments and business enterprises as an emerging international standard. For instance, the International Finance Corporation’s Performance Standards (governing private-sector loans from the International Finance Corporation and Equator Principles banks) were revised in 2011 to make explicit reference to FPIC.
Recent and convergent interpretations of international law suggest that FPIC does not necessarily require unanimous consensus, but also that majority support may also not be adequate in some circumstances. FPIC does not give indigenous peoples a veto, but they also have “the right not to consent to extracting resources as an exercise of their sovereignty.” There are some situations in which it may be mandatory to obtain indigenous peoples’ consent (e.g. in the case of forced relocation); other situations where the context may require consent (e.g. where there are impacts on cultural heritage); and, other situations where the requirement of consent is set out in treaties with indigenous peoples.
Free, Prior and Informed Consent in Canada
As a distinctive legal concept and international standard, FPIC finds its main expression in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Canada initially voted against the UNDRIP at the UN General Assembly, citing concerns about FPIC being used as a veto (amongst other concerns). However, Canada later endorsed the UNDRIP through a Statement of Support issued in November 2010, stating: “[w]e are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework.
It should be highlighted that these international standards containing the principle of FPIC are not legally binding upon Canada: the UNDRIP is a Declaration rather than an international treaty that Canada has signed and ratified; and, the IFC Performance Standards are binding on companies, through the terms of their project financing, rather than on governments.
Therefore, while Canada recognizes and supports the principle of FPIC at an international level, it is necessary to look at how analogous concepts have been embedded in Canadian laws and policies. There are important legal protections for aboriginal peoples rights in Canada, including with respect to the Crown’s “duty to consult and accommodate” that is contained in section 35 of the Constitution and the well-developed constitutional common law jurisprudence of Canadian courts.
Beginning with a series of Supreme Court of Canada decisions in 2004 and 2005, it has been clarified that the Crown has a duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that might have adverse impacts on aboriginal or treaty rights. The duty to consult and accommodate is a key part of preserving the “honour of the Crown” and fulfilling the objective of reconciliation between the Crown and Aboriginal peoples other societal interests. The federal government has published aboriginal consultation and accommodation guidelines that include a series of guiding principles and consultation directives, a step-by-step guide and a discussion of the roles and responsibilities of different actors: federal departments, agencies and boards; provinces and territories; project proponents; and, aboriginal groups.
As was stated in a recent legal article, “[a]lthough FPIC and the Canadian duty to consult originate from different sources and use different language, they have both evolved in such a way that they reach the same results in practice. If the Canadian government abides by its Constitution and the Indian Act, and meets the criteria for consultation established [by the Supreme Court of Canada], it will, in most cases, fulfill the requirements for FPIC in international law.”
Free, prior and informed consent in Nunavut
For the purposes of a discussion about FPIC in Nunavut, the constitutional common law “duty to consult and accommodate” in Canada provides an important backdrop; however, it is also important to examine the terms of the Nunavut Land Claims Agreement. In the context of resource development on Inuit lands, the NLCA is a modern land claims agreement that provides a number of institutions and mechanisms that help fulfill the requirements of FPIC, notably through the creation of the Nunavut Impact Review Board (NIRB) and the requirement that major development projects cannot commence without the negotiation of an Inuit Impact Benefit Agreements (IIBA).
Public consultation with Inuit (and other stakeholders) is part of the requirements for the review of the ecosystemic and socio-economic impacts of project proposals by the NIRB in accordance with Article 12 of the NLCA. The NIRB is an institution of public government whose members are responsible for its operations; and, a plurality of NIRB members are nominated by Designated Inuit Organizations (DIOs). The NIRB has developed rules of procedure and procedural guides to govern consultation with Inuit and the general public about proposed projects in Nunavut.
As discussed below, the NIRB conducted a detailed review process for the Mary River Project for more than four years, with numerous opportunities for formal and informal consultation. This included the participation of Baffinland, various federal and territorial government departments and DIOs as formal Parties throughout the entire review process. There were opportunities for public consultation, notably at a series of public hearings in July 2012 that also included community roundtables. Lloyd Lipsett and Dr. Zacharias Kunuk were granted formal intervenor status for these public hearings, and made submissions about the importance of addressing the human rights impacts of the Mary River Project. Furthermore, the NIRB Final Hearing Report contains a number of specific recommendations, terms and conditions for on-going consultation with respect to different aspects of the project; in addition, the report underscores the voluntary commitments that Baffinland made with respect to consultation during the public hearings.
In terms of consent, Article 26 of the NLCA stipulates that no “Major Development Project” may commence until an Inuit Impact and Benefit Agreement is finalized. This means that, in Nunavut, there is a requirement that a certain form of consent is obtained from the relevant DIOs through the IIBA negotiation process. In addition, the NCLA includes a list of topics that are appropriate for IIBA negotiations, many of which are relevant to the protection and promotion of Inuit collective and individual human rights.
Not only is this legal provision significant in ensuring the consultation and consent of Inuit, it also entrenches the good practice of obtaining and documenting FPIC through impact benefit and other agreements. Furthermore, as the IIBA can be enforced according to the common law of contract (according to Article 26.9.1), the relevant Designated Inuit Organization has an additional mechanism to ensure that project proponent lives up to its commitments.
According to the most recent reports, the Qikiqtani Inuit Association and Baffinland are in advanced negotiations about the terms of an IIBA. At this stage, the terms of the IIBA are confidential. In 2009, the QIA and Baffinland negotiated a Memorandum of Understanding (MOU) that deals with some of the matters that may covered by an IIBA.
What is Baffinland doing to respect Inuit rights to consultation?
According to international human rights standards, governments have the primary duty to protect indigenous peoples rights to consultation, consent and participation. However, businesses also have a responsibility to respect these rights as well. Similarly, in Canadian law, while there are many aspects of consultation and accommodation of aboriginal people that will fall upon project developers, the ultimate duty to consult and accommodate resides with the Crown.
Given the complex interplay between the roles and responsibilities of governments, businesses and indigenous peoples to design and implement a successful and rights-respecting consultation and consent processes, this is an increasingly important issue for business enterprises, particularly in relation to resource development. There are allegations of extractive industry companies infringing indigenous peoples rights as a result of their consultation practices (or lack thereof), particularly in countries where there are inadequate laws, regulations and mechanisms for free, prior and informed consultation and consent. Moreover, infringements of FPIC are often connected to infringements of other human rights, as well as to social conflicts and/or costly legal cases.
Baffinland and (its parent company) ArcelorMittal’s policies do not explicitly address the issue of FPIC. However, they both have a number of policies and procedures that are relevant to the consultation, consent and participation of Inuit.
Baffinland’s Sustainability Policy includes the following statement in section 3.0: “[w]e honour our commitments by being sensitive to local needs and priorities through engagement with local communities, governments, employees and the public. We work in active partnership to create a shared understanding of relevant social, economic and environmental issues, and take their views into consideration when making decisions.” Furthermore, Baffinland has prepared a Stakeholder Engagement Plan in the FEIS that provides detailed objectives for its overall consultation efforts with Inuit and other stakeholders, as well as specific goals and activities for the construction and operational phases of the Mary River Project.
ArcelorMittal’s Human Rights Policy also contains the following commitment to dialogue with local communities: “We seek to respect human rights and
to develop an understanding of the cultures, customs and values that prevail in our local communities by developing an inclusive and open dialogue with the people affected by our operations. The ArcelorMittal Community Engagement Standard requires us to conduct an open and inclusive dialogue with local communities, including engaging with often under-represented groups such as women and Indigenous Peoples.” It is supported by an
External Stakeholder Engagement Procedure that provides additional guidance.
As a member of the Mining Association of Canada, Baffinland has also committed to the Towards Sustainable Mining guiding principles and an Aboriginal and Community Outreach Framework and Protocols.
In terms of its practices, Baffinland’s record of community engagement and the progress in negotiating an IIBA are summarized in section 1.2.4 and 1.2.5 of the FEIS:
1.2.4 Baffinland’s Record of Community Engagement
Baffinland has been proactively engaged in consultation with local communities, increasing the scope of its consultation activities progressively since 2004. In 2007, Baffinland established liaison offices in the five North Baffin communities closest to the Project and in Iqaluit staffed by local Baffinland Liaison Officers. Due to financial constraints and a scaling back of operations in late 2008, the number of liaison offices was reduced to two from five but this number is being increased back to 5 for the beginning of 2012. With the exception of 2009, Baffinland has carried out bi-annual public meetings in the five North Baffin communities of Arctic Bay, Clyde River, Hall Beach, Igloolik, and Pond Inlet and, starting in 2010, Cape Dorset and Kimmirut. Details of the Company’s past consultation activities are provided in Volume 2, Section 1, and the Company’s Stakeholders Involvement Plan is included in Appendix 10F-1. The Stakeholders Involvement Plan and the Company’s engagement activities have been aligned with ArcelorMittal’s Community Engagement Standard included in Appendix 10F-1.
1.2.5 Negotiating an Inuit Impact and Benefit Agreement
Baffinland started discussions with the QIA in 2006 on the development of a future Inuit Impact and Benefit Agreement (IIBA). In March 2009 the two organizations reached an agreement-in-principle on the economic provisions of a future IIBA through the signing of a Memorandum of Understanding (MOU). Additional sections of the IIBA have also been successfully negotiated, and the Company and the QIA expect to complete a signed Agreement-in-Principle in the coming months. In a November 24, 2011, letter to the NIRB, the QIA indicated that it is close to completing negotiations with Baffinland on an IIBA for the overall project and anticipate having a final draft agreement by the end of January 2012.
Furthermore, since it submitted its project proposal for the Mary River Project to the NIRB in March 2008, Baffinland has naturally been the key participant in all the consultation opportunities provided for by the NIRB review process. This involved the preparation of and refinement of the FEIS, including providing responses to numerous Requests for Information and technical workshops with the Parties, including DIOs, as well as public hearings involving Inuit and other stakeholders. Numerous Baffinland executives, staff and advisors participated in the public hearings and made detailed presentations and responded to questions and concerns about different aspects of the Mary River Project.
In addition to the terms and conditions placed on the Mary River Project, the NIRB Final Hearing Report also documents the various commitments that Baffinland made during the public hearings in relation to questions or concerns raised by community members. A significant number of these terms, conditions and commitments relate to on-going consultation with Inuit and other stakeholders.
Further consultation efforts have been part of the development of the Addendum to the FEIS for the Early Revenue Phase; and, Baffinland and the other parties and stakeholders will participate in public hearings related to the NIRB’s forthcoming review of the Early Revenue Phase.
What roles and contributions can other actors make to consultation?
In keeping with the UN Guiding Principles on Business and Human Rights, the assessment framework for the HRIA focuses primarily on the role of the State in protecting human rights and business enterprises in respecting human rights. However, it is important to consider the roles and contributions of other actors to the consultation process for the Mary River Project.
• Pursuant to the NLCA, the Qikitani Inuit Association (QIA) is a key actor in protecting Inuit rights through its role as the Designated Inuit Organization (DIO) for Inuit in the Baffinland region. The QIA was an active participant in the NIRB review process: in addition to participating in all stages of the review and making detailed submissions, requests for information and recommendations, it also formed “Mary River Committees” to contribute to consultation efforts within the communities. Furthermore, as mentioned above, the QIA has the role and responsibility to negotiate the IIBA.
• As a territorial government, the Government of Nunavut shares the Crown’s duty to consult and accommodate Inuit. The Government of Nunavut also was an active participant as a party in the NIRB review process, making detailed submissions, requests for information and recommendations from the perspective of various territorial government departments.
• A number of individuals participated in the community roundtable portions of the public hearings, primarily Inuit from the project-affected communities, including elders and some women and youth. Furthermore, a number of public officials and organizations made presentations during the community roundtables. For example, these included the mayors of Iqaluit, Igloolik and Pond Inlet, the Royal Canadian Mounted Police, and the World Wildlife Fund. According to the NIRB Rules of Procedure, it is also possible for Inuit and members of the general public to apply for formal intervenor status, which provides a more formal role in making presentations to the Board and posing questions to the other Parties during the public hearings. To make submissions related to the HRIA, Dr. Zacharias Kunuk and Lloyd Lipsett applied for intervenor status, which was granted. No other individuals applied for intervenor status.
• The media has a role in promoting informed consultation with Inuit. Local and national media outlets covered the public hearings, particularly the opening sessions in Iqaluit (some concern was expressed by community members in Pond Inlet where media was not present). IsumaTV used local radio to promote informed consultation and active participation of Inuit in advance of the public hearings; attended the hearings in Iqaluit and Igloolik; and, assisted in broadcasting the hearings in Igloolik and Pond Inlet on local radio and over the Internet.
Concluding observations about free, prior and informed consent
From the discussion above, it is clear that Inuit have been consulted about the Mary River Project. Baffinland began its consultation efforts in 2006 and there have been numerous opportunities for formal and informal consultation as part of the NIRB review process that began in 2008 and culminated with final public hearings in the summer of 2012. The consultation has been with Designated Inuit Organizations and Inuit (as well as federal and territorial government departments, other public representatives, organizations and intervenors with mandates related to protecting or supporting Inuit).
While the concept of “Free, Prior and Informed Consent” (FPIC) has not been formally recognized in Canadian law or in the corporate policies of Baffinland or ArcelorMittal, there is an appropriate legal and institutional framework for consultation with Inuit in the context of the Mary River Project. A number of factors point towards this preliminary conclusion: the constitutional common law “duty to consult and accommodate” in Canada;” the terms of the Nunavut Land Claims Agreement that provide for the NIRB review process and the requirement to complete an IIBA for major development projects; and, the consultation and engagement practices of Baffinland to date.
In terms of “free” consultation, there was no conduct that would amount to intimidation, coercion or manipulation during the public hearings.
• Some community members expressed concern in private about the tense atmosphere that surrounded some portions of the public hearings; and, this may have affected their willingness to participate or express themselves fully at the hearings. However, the NIRB Board and staff made repeated efforts to encourage all participants to freely express their views, particularly during the community roundtables. Ultimately, a wide range of views on different issues was expressed throughout the community roundtables, often in colourful and/or forceful terms.
• The NIRB facilitated the participation of community representatives from 11 communities in the public hearings in Iqaluit, including representatives of women and youth.
• The participation of the Mary River Committees at the public hearings was also facilitated by the QIA.
• Participation in the public hearings was promoted through the local newspapers and IsumaTV’s community radio programmes.
• All requests for intervenor status that were submitted according to the Rules of Procedure were accepted by the NIRB. However, a single request for intervenor status was made by an individual (Dr. Zacharias Kunuk), so this avenue for participation was under-utilized. Some potential reasons for this are: unfamiliarity with this procedure; reluctance to use formal and written procedures, especially when other opportunities to make oral presentations existed in the NIRB’s Community Roundtables.
In terms of “prior” consultation, extensive consultation took place before the Mary River Project was approved and began construction.
• Consultation efforts of Baffinland began in 2006.
• The NIRB review process began in March 2008 and the Minister’s approval of the Mary River Project was given in December 2012.
• There are still additional consultations that will take place in relation to the Early Revenue Phase.
In terms of “informed” consultation, there was extensive information provided in various forms throughout the NIRB review process.
• The key documents in the review process were the draft and final Environmental Impact Statements, which contain very detailed information about environmental, social, economic and archaeological impacts that responded to the “EIS Guidelines” established by the NIRB.
• The information contained in the draft and final EIS goes far beyond the basic criteria enumerated by the UN Development Group.
• The information in the draft and final EIS, including about potential negative impacts, was probed and refined through a process of Requests for Information, technical meetings and questions to Baffinland and other parties in the final public hearings. If anything, the concern is that the information in such impact statements can be too voluminous and technical to be digested and understood by non-experts.
• In this regard, a popular summary of the FEIS was prepared and translated into Inuktitut, as were other presentation materials. Simultaneous translation between Inuktitut, English and French was provided throughout the public hearings. The challenges of translating and communicating the detailed and technical information in impact assessments are addressed elsewhere in this report.
• All of the written information pertaining to the Mary River Project was made available electronically on the NIRB website and through the distribution list for the Mary River project.
• Through Mary River Committees, IsumaTV’s community radio shows and other mechanisms, additional information was provided to communities about different aspects of the Mary River Project.
In terms of “consultation and consent:”
• At the final hearings, the Designated Inuit Organizations, QIA and NTI, expressed support for the Mary River Project, while raising some concerns and providing recommendations to the NIRB.
• Although it has a different legal status than DIOs, the majority of the constituents of the Government of Nunavut are Inuit. The Government of Nunavut also supported the project, while raising some concerns and providing recommendations to the NIRB.
• Elders and other Inuk expressed many concerns and expectations about different aspects of the Mary River Project throughout the public hearings. However, it was quite rare that these individuals expressed the view that the project should not go ahead; rather most individuals emphasized the need for jobs and benefits for Inuit and strong protections for the environment and communities as the basis for the project proceeding.
• As mentioned above, a number of public officials and organizations made presentations during the community roundtables, raising new issues about potential social impacts and safety issues that would affect Inuit.
• The NIRB Final Hearing Report provides a detailed and balanced discussion of the issues and themes raised at the public hearings; and, has recommended over 180 terms and conditions in response to community concerns. It also has listed the commitments that Baffinland made during the hearings in Appendix A of its report.
• The Minister has accepted the Mary River Project based on the terms and conditions in the NIRB Final Hearing Report, so the consultation and input of Inuit will have an influence on the project’s development and operation. A significant number of the terms and conditions address on-going consultation with Inuit and other stakeholders.
• Insert point about consent with respect to the final IIBA and any information, consultation and ratification with communities before its ratification.
Consultation processes are by their nature complex and imperfect. Their success requires the sustained efforts of many parties over a long period of time. They can always be improved.
Consultation and consent should not be viewed as a “one-time event,” but rather as a continuous process of building and maintaining trust and the social license to operate. The opportunities and successes of consultation through the NIRB review process and Baffinland’s community engagement should be viewed as the foundation for on-going consultation over the lifespan of the mine.
1. Conduct a survey about the consultation efforts to date to understand what has worked and what can be improved for on-going consultation with Inuit. The current regulatory phase of the project is a good opportunity to conduct such an evaluation in order to design and refine consultation, engagement and monitoring mechanisms and procedures going forward. Some of the issues that could be addressed include: timing, format and duration of public hearings; preferred format and media for receiving information; how to enhance the participation of women and youth; role of company liaison offices and local committees; how to address consultation fatigue and information overload; etc. From a human rights perspective, the satisfaction of Inuit about consultation efforts and their belief that they have been carried out in good faith are important issues. Periodic and independent review of consultation practices is suggested as an important rights-respecting practice.
2. Make use of multimedia options to enhance on-going informed consultation. Moving forward, there will be a wide variety of issues being discussed, reports being produced, and monitoring groups examining different aspects of the Mary River Project. It would be very useful to create an Internet platform where all this information can be compiled and accessed by Inuit and other stakeholders. Internet tools can also provide opportunities for comments and feedback. As is discussed elsewhere in the report, the Internet provides opportunities to use video and audio tools that can help address some of the challenges of translation into oral Inuktitut.
3. Ensure the NIRB has the capacity and resources to oversee on-going consultation for Mary River and to ensure prior consultation for future mining projects in Nunavut. As discussed above, the NIRB has played a critical role in protecting the consultation rights of Inuit throughout its review process, public hearings and terms and conditions in its Final Hearing Report. It will also play an important role in monitoring the Mary River Project, including the terms and conditions relating to on-going consultations. As the NIRB will likely be under increased pressure and workload given the predicted expansion of exploration and mining activity in Nunavut, as well as the government’s desire to streamline and place time-limits on environmental review processes. If part of the social acceptability and approval of the Mary River Project relates to the strength of the NIRB review process, it is important that the NIRB have adequate resources to conduct rigorous reviews in the future.
4. Baffinland should fully implement its Stakeholder Engagement Plan, as supplemented by the group-wide requirements of ArcelorMittal and the commitments undertaken as part of the Mining Association of Canada’s Towards Sustainable Mining. As with other recommendations about the implementation of corporate policies, effective oversight, periodic evaluation including stakeholder feedback, and public reporting are key elements.
Free, Prior and Informed Consent
International Finance Corporation, Performance Standard 7 on Indigenous Peoples.
UN Global Compact, United Nations Declaration on the Rights of Indigenous Peoples: A Business Reference Guide.
UN Expert Mechanism on Indigenous Peoples Rights, Advice No. 4: Indigenous peoples and the right to participate in decision-making, with a focus on extractive industries.
Boreal Leadership Council, Free Prior, and Informed Consent in Canada: Towards practical guidance for developers and Aboriginal communities.
“Making Free, Prior and Informed Consent a Reality: Indigenous Peoples and the Extractive Industry”
Impact Benefit Agreements
Nunavut Land Claims Agreement: http://laws-lois.justice.gc.ca/eng/acts/n-28.7/
What are Impact Benefit Agreements? http://www.miningfacts.org/What-are-impact-benefit-agreements/
Impact and Benefit Agreement Research Network: http://www.impactandbenefit.com/
IBA Community Toolkit: http://www.ibacommunitytoolkit.ca/
Gowlings’ webinar on Aboriginal Impact Benefit Agreements: http://m.gowlings.com/knowledgeCentre/publicationPDFs/IBA-January-11-Webinar.pdf