Sask. consultation policies criticized after Birch Narrows Dene Nation standoff

Expert says government needs a clear framework to consult Indigenous communities on resource development

Trapper Leonard Sylvestre (right) with fellow land-user Shane Tobac. Sylvestre's trapline was used by Baselode Energy Corp. on the Birch Narrows Dene Nation's traditional territory. Photo courtesy of Ron Desjardin

A historian focused on the history of the Canadian north, Aboriginal rights and Indigenous claims called for Saskatchewan to clarify its consultation policies. The criticism comes after the Birch Narrows Dene Nation told Toronto-based uranium company Baselode Energy Corp. to leave its territory in February.

Ken Coates, Canada Research Chair in Regional Innovation Johnson-Shoyama Graduate School of Public Policy, said perceptions need to change around how government and business interact with Indigenous communities in Saskatchewan on mineral rights.

“The world has changed, so what was sort of acceptable across Canada and even internationally, even five years ago continues to change as time goes along,” Coates said. “What we’re seeing is the urgent need for binding reconciliation.” 

Saskatchewan Indigenous leadership called for Baselode Energy Corp. to stop surveys on Birch Narrows Dene Nation traditional territory unless consent is given.

A permit was issued by the province to Baselode for access to land near Turnor Lake, on the edge of the Athabasca Basin and traditional territory of the Birch Narrows Dene Nation, while consultations with the community were still ongoing. 

The company set up camp and began conducting surveys on Birch Narrows resident Leonard Sylvestre’s trapline in an area traditionally used for such activities by the community. 

Leaders in the community said company employees acted in a disrespectful way when blockades were set up to prevent Baselode contractors from accessing the site where they planned to begin preliminary surveys. Birch Narrows Dene Elder advisor and trapper Ron Desjardin said it felt like an invasion.

Desjardin said his community has long relied on an abundance of caribou and moose, who feed in muskeg areas such as the proposed exploration site near Harding Bay.

He said frequent wildfires have enclosed that small piece of habitat as a last refuge for woodland caribou and fears the impact that a uranium mine in that location could have.

“That whole area back there that I’m talking about is a unique habitat, well fitted for woodland caribou, and they were all over the place. We had caribou and  we were always successful. We’d go get our caribou and come back. And then the fires came through,” Desjardin said. 

The Métis Nation of Saskatchewan (MN-S) also filed a lawsuit against the province last year claiming that the Métis are not being properly consulted over land use issues.

MN-S argues that the province’s continued “use and reliance” on the 2010 First Nation and Métis Consultation Policy Framework is inconsistent with the government’s duty to consult. The Métis government wants a ruling from the Court of Queen’s Bench that the 2010 policy is invalid. 

“The province’s reliance on the 2010 policy to avoid its duty to consult is dishonourable,” MN-S President Glen McCallum said in a statement.

“The Crown’s duty to consult and the obligation of the province to uphold the honour of the Crown are fundamental constitutional principles provided to guide all Canadians towards reconciliation. The province cannot opt out of its constitutional obligations. Likewise, the province cannot create policies and processes which circumvent true and meaningful consultation,” McCallum said.

The Métis took legal action against another mining company, NexGen Energy Ltd. for allegedly not complying with an agreement the two signed in 2019.

The need for prior and informed consent as defined under the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has not been defined legally and has generated some uncertainty in the mineral industry, Coates said.

“There’s an ongoing series of court challenges by Indigenous people who make it very clear that they have inherent Indigenous rights in cases like this, the treaty right to the protection and use of their land that has to be respected by anybody who wishes to use them,” Coates said. 

“There have been court cases in the north for example, where First Nations have said, ‘You have to talk to us before you even start looking’ which is what this situation is all about here. Many companies now follow that as a matter of course.”

Coates said that unlike other jurisdictions, Saskatchewan does not have a solid reputation for outreach and for engagement with Indigenous peoples when it comes to mining interests on their traditional territories. Fixing that could save companies and the province a lot of headaches. 

“In British Columbia, the Yukon and Northwest Territories, provincial and territorial authorities really put a lot of pressure on companies to follow particular lines of consultation, to engage systematically,”  Coates said.

“The reputation in Saskatchewan isn’t the same. The reputation in Saskatchewan is that the government takes a more hands off approach and leaves it for the companies to decide what they want to do.” 

He said that works well for companies that are used to doing business in the province but that when new companies come in it can be disorienting.  

“There’s not as much direction as there should be as to what’s expected and what the provincial standard is.  Whereas in Yukon and the Northwest Territories people know what the government wants and expects out of the process. So, I think we need to improve our systems in Saskatchewan,” Coates said.

Ministry of Government Relations spokesperson Jay Teneycke said the province is “constantly reviewing the Consultation Policy Framework in light of feedback from Indigenous groups and industry, all with a view to ensuring that the Policy meets our legal obligations and provides meaningful, practical and predictable processes for all involved.”

“The Government of Saskatchewan is committed to fulfilling the Crown’s legal Duty to Consult and accommodate as articulated in its First Nation and Métis Consultation Policy Framework,” Teneycke said.

“The First Nation and Métis Consultation Policy Framework guides our objectives to protect Treaty and Aboriginal rights, advance reconciliation between Aboriginal peoples and non-Aboriginal society, and promote certainty for investment in our province to benefit all Saskatchewan residents. 

“The goal of the policy is to facilitate mutually beneficial relationships among the Government of Saskatchewan, First Nations, Métis and industry that contribute to a growing provincial economy.”

Teneycke said that under Saskatchewan’s First Nation and Métis Consultation Policy Framework, all projects involving Crown land are evaluated to see if the Duty to Consult is triggered. 

“The Duty will be triggered whenever a project potentially has an adverse impact on the exercise of Aboriginal or Treaty rights,”  Teneycke said. 

Attitudes are important too, Coates said. To build successful partnerships companies need to approach communities in the right way. 

“We have to recognize and respect the fact that the world has changed and that Indigenous people expect to be consulted. We need to get away from the idea that Indigenous people are somehow a barrier in the way of resource development,” Coates said. 

“Indigenous folks are extremely supportive of Indigenous resource development across this country and I think we should just be far more aware of that. Companies that recognize this and are partners from the very beginning get major benefits over time.”

Coates said that companies that have been successful at partnering with Indigenous communities in Saskatchewan understand that First Nations are valuable partners. 

“There’s been so much mining activity in northern Saskatchewan, and Saskatchewan for the last couple of decades has been one of the top places in North America to do mining activity. People should realize that there’s an awful lot of knowledge in these communities. They know what works and what doesn’t work,” Coates said.

“They know when they’ve run into troubles with other mines, where they had a mine that was 40 years ago, that didn’t take into account the muskeg and caused all sorts of grief. So if they don’t want you to go into a muskeg area then talk to them and find why. Have that conversation, learn from them and make the necessary accommodations.”

The province said it encourages industry to engage First Nation and Métis communities early in the project development process to avoid these scenarios. 

“Permits issued by the Ministry of Environment for mineral exploration are valid.  These permits provide the authorization to access unoccupied provincial Crown lands,” Teneycke said.

“Given that many exploration programs occur in Treaty area where Aboriginal and Treaty rights may be exercised, it is strongly encouraged for the proponent to begin dialogue with proximate First Nation and Métis communities early on, and even before a permit is requested.  

“Proponent engagement is an essential part to building mutually beneficial relationships with communities and may inform government’s duty to consult process.” 

In this case, Teneycke said Baselode Energy applied for a permit in October 2020. The Ministry of Environment contacted the First Nation and the Métis Local about the project to “advise the proposed work is non-intrusive, short-lasting and will have little to no impact on the environment or hunting, fishing and trapping rights.”

“These types of consultations are usually completed within three weeks. The company was in regular contact with members of both communities during this time and modified its request for the permit to take into account the concerns that it heard,”  Teneycke said. 

“The communities also had an opportunity to notify government if they had concerns with the project. As a result, the permit was issued in January 2021.  The permit provides Baselode with the legal right to access the property.  Any interference with that right is unlawful.”

Coates said the duty to consult is subject to ongoing rulings by the Supreme Court of Canada and that’s not something a company should want to get tied up in. 

He said that since industry is in the ‘business of risk and reward’ it could be costly for the government to foot the bill for every consultation that happens. 

“In Canada we’ve passed that obligation on to the company but the actual technical obligation still goes back to the Crown. But regardless of who initiates, First Nations should be involved at every stage of a project. The sooner the better,” Coates said.  

“I think what I call lifecycle engagement is the best way to go. Start early and do it in a friendly, non-confrontational way. Don’t don’t lead with your lawyers, and don’t lead with your interpretation of the Constitution. There are better ways to do things.”