Resource World Magazine

A U G U S T / S E P T E M B E R 2 0 1 7 www.resourceworld.com 21 T homas Isaac, former Chief Treaty Negotiator for the government of BC and lawyer specializing in aborigi- nal policy and legal matters at Cassels Brock & Blackwell LLP, insists that 'unsettled land claims' are not and should not be perceived as a bar- rier to resource development in Canada. This applies to the southeast Northwest Territories (SE NWT), where a lack of settled land claims is notable compared to the rest of the ter- ritory, and where Isaac was appointed by the Minister of Indigenous and Northern Affairs and the Premier of NWT as the Special Representative to help develop a path to reconcili- ation for outstanding Aboriginal claims and negotiations. Isaac's perspective may become increasingly relevant to investors in the next few years as the GSC's Geo-Mapping for Energy and Minerals (GEM) project completes four 250,000- scale regional map sheets in SE NWT, likely generating increased exploration activ- ity. The mapping program is upgrading the understanding of the geology and mineral potential in the most poorly mapped part of the Canadian Shield, and tracing structures and geology from northern Saskatchewan (where there are many past and currently pro- ducing mines) north across the border into NWT. The purpose of Isaac's appointment, on June 16, was to advance outstanding Section 35 rights and related claims in SE NWT. (Section 35 of Canada's Constitution Act, 1982 provides that existing aborigi- nal and treaty rights of the aboriginal peoples in Canada are recognized and affirmed.) He consulted with numerous indigenous groups and public governments with interests in the region, examined exist- ing negotiation processes, and developed recommenda- tions. Isaac's report, A Path to Reconciliation, was released publicly in April 2017. In the report, Isaac attributes the challenges to making prog- ress on claims, in part, to an unnecessary focus on the failed 1990 Dene-Métis agreement. While the 1990 Dene-Métis framework assisted the settle- ment of claims in other parts of NWT, it is not helpful in SE NWT given the higher num- ber of overlapping indigenous claims and the fact that the Denis and Métis are not nego- tiating together (unlike in other areas of NWT). However, Isaac asserts that these issues are not insur- mountable, or even unique. Overlapping claims through- out the entire province of British Columbia involve over 200 First Nations, plus Métis interests, yet the province is a major player in Canadian exploration, accounting for an average of 19% of Canada's exploration plus appraisal expenditures between 2012 and 2016 (NRCAN 2017). According to Isaac, "The Canadian legal system is designed to deal with conflict- ing land claims. Overlapping claims are not the issue, and while the challenges that indig- enous groups and government in NWT face are complex, they are not unique. Jurisdictions like British Columbia have numerous unsettled claims while business and gover- nance continue, albeit within the context of unsettled indig- enous claims. For SE NWT, the best possible route forward is to explore modern, workable mandates for land claim settle- ments that are balanced, fair, and sensitive to the multitude of competing interests in SE NWT, while accommodat- ing the realities of our global economy." In terms of how this impacts the resource indus- try, Isaac maintains, "The notion that you need a settle- ment to encourage resource development I would reject. The sky doesn't fall absent a settlement, but a settlement can be an extremely positive development in the broader framework of attracting and maintaining investment in the natural resource sector. The bigger issue at play in Canada is government reactions to aboriginal claims and assertion of rights through the regula- tory process." During Isaac's engagement, he observed positive attitudes towards resource development: "In working with aborigi- nal peoples, I did not hear anything I would call anti- development. What I heard was a desire to be involved in decision making processes, a desire to have Section 35 rights acknowledged and respected, and a desire to share the ben- efits of resource development appropriately." His personal experience with major mining and energy companies has also been posi- tive in that "they are prepared and willing to engage in proac- tive consultation aggressively." To exploration companies, he advises that "Due diligence is the number one issue…. Go into any of these areas and know the indigenous peoples who are living or asserting their rights in the area, know your regulator, and know what sensitivities exist in dealing with aboriginal issues… And say what you mean, and mean what you say in your commu- nications. These are the core issues." n What reconciliation means for southeast NWT exploration by Laura Barker Thomas Isaac, Northwest Territories Special Representative. MINING

• Cover