Across Canada a new approach to mine permitting is emerging that involves consensus-seeking and consent in the context of project assessment, decision-making and agreement making. This new approach is reflected in formal changes to the EA process (BC, Federally) and in an informal requirement for consent (Ontario). This approach has its roots in the UN Declaration. When the UN Declaration was first adopted by the United Nations in 2007, Canada resisted, concerned about the uncertainty regarding the requirement for consultation to obtain “free, prior, and informed consent” (or FPIC) from Indigenous peoples before making certain decisions that may affect them or their traditional territories. There was, and remains, a fear amongst some that FPIC is an Indigenous “veto” on Crown decision-making that is inconsistent with the legal structures around consultation, rights and title that have grown out of jurisprudence grounded in section 35 of the Constitution Act, 1982. With governments now embracing the UN Declaration, legislation has been enacted which brings the UN Declaration into the laws of British Columbia law and Canada.

This panel will deal with the following subjects:

• The status of the implementation of the UN Declaration in domestic Canadian law
• Legal (and informal) requirements for consensus-seeking and consent across Canada
• Pivot from consultation to consensus- and consent-seeking in the regulatory process for mining projects
• Consent agreements as a tool for advancing reconciliation, attracting investment consistent with robust environmental, social and governance (ESG) standards, and facilitating increased predictability in terms of the project approval process