As BC slogs through UNDRIP adoption, private sector engages First Nations without province

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British Columbia's private sector has quietly embraced the benchmarks of the UN resolution on Indigenous rights on its own accord while the province slogs through reforms.

BC committed to adopting UNDRIP in 2019, but lawyer Merle Alexander, who has worked on two deals between First Nations and resource companies in the past year, says private companies have mostly complied with the non-binding declaration without involving the province.

As general counsel to the BC Assembly of First Nations, Alexander represents several individual First Nations. He unveiled "pre-compliance" deals involving a mining firm and an LNG industry group that are in the works.

"Those industries are making significantly more progress than the public process," said Alexander, a Kitasoo Xai'xais First Nation member. 

Last June, Tahltan Nation and Vancouver-based Skeena Resources reached a historic, consent-based agreement authorizing permits for the Eskay Creek gold and silver mine — the first project to receive First Nation government approval.

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Nalaine Morin, Skeena's vice-president of sustainability and the director of the former land at the Tahltan Central Government, said the mining company worked with the First Nation for years on collaborative consent-seeking, laying the foundation that made the agreement possible.

In January, the three parties came together again to sign a process charter for the approval process of Eskay Creek. The charter establishes the Tahltan Central Government as a key player in environmental assessment and permitting.

Obtaining free, prior and informed consent from Indigenous communities regarding using their lands is a cornerstone of UNDRIP.

"That was basically from Day 1," said Morin, a Tahltan Nation member. "They signed some of the first agreements — exploration agreements, communications agreements — with the Tahltan Central Government."

The province has long indicated it would like to reform the Mineral Tenure Act — which determines where mining can occur in BC — to comply with UNDRIP. It still has hundreds of statutes to review, and only eight to 10 comply with another 42 "in play."

"I'm not optimistic that it will be a fast process," said Alexander of a full UNDRIP adoption by the province.

The estimated cost of the Coastal GasLink pipeline increased by 29% to $14.5 billion this year, owing to an uptick in unexpected construction issues and rising labour costs.

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Alexander commented on the lack of provincial involvement in the ongoing private sector deals, "it's simpler because it's a bilateral process, and there are usually only a few parties involved in an impact-benefit agreement negotiation."

The CEO of Conuma Resources, Brian Sullivan — whose company operates three coal mines in northeastern BC and on Treaty 8 land — said they have impact-benefit agreements with four Nations. However, the company sees these deals as "the bare minimum" for a company.

Conuma has appointed an Indigenous affairs executive to sit on an expenditure board representing First Nation interests for every capital spending item involving the company.

"Without that fundamental respect from the starting point, we don't have that licence to operate in the Treaty 8 territory," said Sullivan. 

"We recognize that we have a period of stewardship on that land and that it takes the cooperation of the resource companies, the Nations, and the regulators to do it correctly."

Last November, five protesters opposed the construction of Coastal GasLink in a contentious blockade that lasted several days. Now, they plead guilty to criminal contempt for defying a court injunction that prohibited their demonstration.

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Alexander added other companies that can follow suit ultimately speed up processes and prevent costly delays by reaching deals with Indigenous governments without involving provincial regulators.

"The companies are doing it for self-interest because they don't want [government to dictate the terms]," said Alexander, as changing entire suites of laws involving multiple stakeholders across society takes time.

"Companies with that intelligence and foresight are rethinking what they need to do more [of] in exchange for a much higher level of legal certainty."

Morin acknowledged the momentum is now on the side of more UNDRIP adoption by private businesses.

"I think it's always important to be mindful of our changing landscapes," she said. "But right now, we are supportive of, and feeling very positive about, the success we have achieved to date."