Reconciliation in the Canadian Critical Minerals Sector

aerial photo of a mine

by Melanee Bryniawsky

On December 9, 2022, the Government of Canada released its Canadian Critical Minerals Strategy (“Strategy”), with an aim to “increase the supply of responsibly sourced critical minerals and support the development of domestic and global value chains for the green and digital economy.”1 As part of this vision, the Strategy sets out initiatives to increase Indigenous participation in the critical minerals sector.

With the passing of the United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDA”) on June 21, 2021, the application of the United Nations Declaration on the Rights of Indigenous Peoples is affirmed federally in Canada. The Strategy sets out the goals and initiatives the federal government is undertaking to “ensure Indigenous peoples are active partners in critical mining development”2 including:

  • Allocating $103.4 million to advance economic reconciliation in the natural resource sector, which is available through the Indigenous Natural Resource Partnerships program
  • Developing a National Benefits Sharing Framework to ensure Indigenous communities benefit from projects in their territories
  • Focusing on job creation by providing skills training and employment support to Indigenous peoples and communities, such as through the Skills and Partnership Fund
  • Recognizing the value of Indigenous Knowledge and science to foster a collective understanding of Canada’s natural resources
  • Hosting roundtables and workshops with Indigenous governments, organizations, and communities to discuss critical minerals
  • Convening a roundtable on the Missing and Murdered Indigenous Women and Girls five Calls for Justice with both Indigenous partners and industry proponents to increase safety and security of Indigenous women, girls, and 2SLGBTQQIA+ people who may be impacted by the industry
  • Working with Indigenous communities to address systemic barriers and ensure there is an active partnership with Indigenous peoples throughout the value chain of critical mineral development; and
  • Honouring treaty obligations and uphold the duty to consult, with the aim of securing free, prior, and informed consent of Indigenous peoples.

The Strategy contains many concrete, actionable steps the federal government will take to ensure there is adequate Indigenous participation in the critical minerals sector. Some of the steps outlined, however, do not provide tangible actions as to how certain obligations or goals will be upheld, such as addressing systemic barriers and upholding the duty to consult. In these cases, more work will need to be done by the federal government with guidance and direction from Indigenous peoples to develop concrete, tangible initiatives.

The Strategy also seeks to make the environmental impact assessment process more efficient by requiring only one assessment if both federal and provincial assessments are required for a project. While the Strategy states that this “streamlines” the process, this desire for efficiency may ultimately impact Indigenous rights and participation, and prove to be detrimental to the upholding of such rights stated to be crucial in the Strategy. For example, in British Columbia, which has the Declaration on the Rights of Indigenous Peoples Act with mechanisms for consent and decision-making over and above the UNDA, Nations may risk losing these tools in the provincial legislation where a single assessment is developed for a project located in British Columbia.

Overall, the Strategy provides a starting framework for reconciliation in Canada’s critical minerals sector which the federal government, proponents and Indigenous peoples can use as a tool for increasing Indigenous participation and respecting Indigenous sovereignty.

For more information on the Strategy, and all other matters related to reconciliation, UNDRIP, and the protection and exercise of Aboriginal and Treaty rights, please contact our Indigenous Law Group.

[1] Canadian Critical Minerals Strategy, p. 4

[2] Canadian Critical Minerals Strategy, p. 30