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Indigenous governments crafting stronger mining agreements through land claims

Looking at mineral claims and mining maps for the NWT and Nunavut, staking and development permit icons criss-cross the vast expanses of both territories.

Paul Quassa: "I think we had very good advisers at that time who had a general sense of what possible mines might come out." photo courtesy of Paul Quassa

Some exploration sites lie on Indigenous-owned subsurface lands, some on Crown lands. All three producing mines in Nunavut – Baffinland iron ore, Meadowbank gold and Doris North gold – all exist on Inuit-owned lands due to "wise land selection" from the 1993 Nunavut Land Claims Agreement, said Tom Hoefer, executive director of the NWT & Nunavut Chamber of Mines. This means royalties flow to Inuit and not to Ottawa.

When it came to zeroing in on locations with the greatest mineral potential, Inuit negotiators relied on expertise from a small team of veteran miners and prospectors.

"I think we had very good advisers at that time who had a general sense of what possible mines might come out. We were very fortunate to have selected them," said Paul Quassa, one of the architects of the Nunavut land claim, which, at 356,000 square km of surface lands, was the largest claim in Canadian history.

The coveted commodities at the time included gold, iron, nickel and other metals.

"We didn't think about diamonds," Quassa said.

Therefore the short-lived Jericho diamond mine was developed on Crown subsurface lands and a portion of Inuit lands with surface rights only. However, there was an Inuit Impact Benefit Agreement between Jericho-owner Tahera Corporation and the Kitikmeot Inuit Association, signed in 2004.

With mineral rights to approximately 37,000 square km of Nunavut's lands, Inuit have title to about two per cent of the territory's subsurface, Hoefer noted.

"This means that the vast majority of the territory’s mineral rights are still owned by the federal government. The Chidliak diamond deposits, the Izok base metal deposit, and the Three Bluffs gold showings – to name just a few – are federally owned," Hoefer stated. "Should they become mines and generate royalties, they would flow to Ottawa."

Mining on Crown lands in Nunavut still provides royalties to Inuit, just at a much lower rate: 50 per cent of the first $2 million in royalties paid to the federal government and five per cent beyond that.

Also, Inuit organizations are members of various co-management boards that have jurisdiction over development decisions across the territory, not just the two per cent of lands where Inuit hold subsurface rights, Quassa noted.

He said there were many factors considered in the land selection process and mineral potential was actually not atop the list.

"Before settlements were created, Inuit lived in camps and those were the first (sites) that we identified," Quassa recalled, adding that wildlife habitat, hunting grounds and scenic areas were also considered a greater priority than potential mine sites.

The Tlicho experience

Like the Inuit, the Tlicho were not focused foremost on mining, according to John B. Zoe, chief negotiator of that NWT region's land claim and self-government deal.

"The old people knew the land and we asked them what's the most valuable land," Zoe recalled of negotiations in the early 2000s. "And so they (asked), 'What has sustained us so far, up to this point?'...

It was important for old people to say, 'Look, we survived this long with what we had. We want to make sure those areas are selected. If there's (mineral) interest in there, we're just going to have to acknowledge it.'"

Development occurring within 39,000 sq km of lands where the Tlicho have surface and subsurface rights would bring full royalties, an impact benefit agreement (IBA) and co-management via the Wek’eezhii Land and Water Board. Outside of Tlicho subsurface lands, an IBA and co-management are still in effect within the region, Zoe noted.

With the long-running Ekati and Diavik diamond mines to the north – as with the former Snap Lake diamond mine and the more recent Gahcho Kue diamond mine – the Tlicho have signed IBAs. They have been receiving a portion of royalties through the federal government and, like other Indigenous groups in the territory, they get a share of the GNWT's devolution royalties, which became effective in 2014.

The mines have provided jobs for many local people, have allowed the Tlicho to develop complementary businesses and some of the mining money has been funnelled into student financial assistance to brighten prospects for young people, said Zoe, who is now senior adviser to the Tlicho Government.

Yet, he wouldn't say the impact of the mines has been more positive than negative.

"There's some economic improvement but it also brings with it social ills. The economics and social development sometimes are not in par with each other," he said. "Trying to find the right match, I think, will be a struggle for many years to come yet."

Among other issues, there are questions surrounding mining pollution, consequences for the climate and effects on wildlife, especially caribou, he said.

The IBAs must be used to develop deeper Tlicho technical expertise relating to the mining industry "so we can have real engagement."

"We've got to go beyond just the labour," said Zoe. "We can't do it at the expense of having to deplete the natural resources that we rely on, which is the animals and the fish."

In the North, mining development has largely been based on past practices, according to Zoe, but the new reality is land claims agreements and self-government must be adhered to. Several such claims have been signed, others are still in progress.

"It's either you negotiate or you go to court," he said of the modern choice that mining and exploration companies face when coming up against empowered Indigenous governments, "and it can be long and drawn out and you never know what the (legal) result might be.

"The purpose of these land claims is that we're looking for a new partnership, a new way of doing things. So that means you've got to pull up your sleeves. Now that we have a full-fledged government up and running, I think we're pretty open-minded."

Fact file

Settled land claims involving mineral rights in the NWT and Nunavut

Northwest Territories total area: 1.1 million square km

Inuvialuit Final Agreement

Communities: Aklavik, Inuvik, Paulatuk, Sachs Harbour, Tuktoyaktuk, Ulukhaktok

Signed: 1984

Area: 90,600 square km of surface lands; 12,980 square km of subsurface mineral rights

Gwich'in Comprehensive Land Claim Agreement

Communities: Aklavik, Fort McPherson, Inuvik, Tsiigehtchic

Signed: 1992

Area: 22,422 square km of surface lands; 6,158 square km of subsurface mineral rights

Sahtu Dene and Metis Comprehensive Land Claim Agreement

Communities: Colville Lake, Deline, Fort Good Hope, Norman Wells, Tulita

Signed: 1993

Area: 41,437 square km of surface lands; 1,813 square km of subsurface mineral rights

Tlicho Land Claims and Self-government Agreement

Communities: Behchoko, Whatì, Gamètì, and Wekweètì

Signed: 2003

Area: 39,000 square km of surface and subsurface rights

Nunavut total area: 2.1 million square km

Nunavut Land Claims Agreement

Communities: All

Signed: 1993

Area: 356,000 square km of surface lands; 36,969 square km of subsurface mineral rights

Source: GNWT & Nunavut Tunngavik Incorporated