By Sam Adkins, Partner at Blake, Cassels and Graydon LLP and Robin Sidsworth, Corporate Counsel at Teck Resources.

The Provincial government in British Columbia has deemed mineral exploration and development as a “non-health essential service” during the COVID-19 pandemic. Explorers will, however, continue to face many challenges in carrying out exploration programs this season. One of those challenges is how to carry out engagement with First Nations, whether to support specific notice of work applications or simply to establish and maintain critical community relationships. Here are five key tips to keep in mind.

First, explorers should not underestimate the significant strain the COVID-19 pandemic is having on First Nation communities in BC. Many First Nations have declared states of emergency and are blocking access to their communities except to essential service providers. First Nation governments are busy trying to ensure that their communities, which in many cases are disproportionately at risk to infectious disease given limited resources and remote locations, are spared the worst of this pandemic. Explorers should keep in mind that their projects and programs are unlikely to be a priority. Indeed, if not handled appropriately, engagement or exploration activities during this period could be viewed very negatively. Crises can either foster goodwill or damage relationships, so it is important that all communication be transparent, timely, practical and most importantly, empathetic.

Second, consider whether engagement on exploration activities is necessary at all. While we recommend checking-in on how a community is faring and offering to help where you can, proactively proposing to cancel or defer any meetings and putting off lower priority work may be the best approach in many circumstances. While this may not be possible in all cases, we note that BC has recently announced regulatory relief on renewals to mineral and coal tenures until December 2021 as a means of helping to reduce the impact on this year’s exploration season.   

Third, if advancing priority work is necessary, then it is critical that engagement is flexible and accommodates the priorities of communities. For explorers with the resources, offers of additional capacity funding are likely to be well received. For those organizations that face financial constraints, leveraging personnel, technology or other resources to support the community’s needs may provide non-financial ways of reducing the burden of necessary engagements on exploration activities. In all cases, explorers will benefit from being efficient, adaptive and responsive to First Nation concerns about how proposed exploration activities are carried out, including whether they should be conducted during critical periods of the COVID-19 response.   

Fourth, consider the medium. Many businesses have quickly shifted to technological solutions such as video conferencing platforms to communicate, but services such as Zoom and Skype may not be appropriate to correspond with all First Nation governments. Many band offices are now closed, and many First Nations communities lack access to adequate internet capacity to leverage video-conferencing technology. Explorers should focus on maintaining or building relationships in whatever way they can, whether it is by email, video conferencing or simply a weekly call. When in doubt, ask.

Fifth, consider the requirements and expectations of provincial regulators. BC has reportedly put in place internal guidance for provincial decision-makers carrying out First Nation consultation during the COVID-19 pandemic. It is clear that BC will only undertake new consultation processes where there is a demonstrated priority and time sensitivity to the work. BC will also need to ensure that its decision-making continues to meet the legal requirements for consultation, which will include considering whether the “honour of the Crown” is being met in making decisions where First Nations have not responded to referral requests in light of the COVID-19 pandemic.