A study on the Canadian mining industry and the potential for the “Duty to Consult” as a pathway towards reconciliation with Indigenous Peoples: lessons for Brazil

Abstract

Using a reconciliation framework, this research examines select Canadian case law and the evolution of the “duty to consult” to explore the potential lessons for resource extraction in Brazil. It conducts an analysis of the legal precedents that exist in Canadian common law as they relate to Indigenous communities and apply the framework drawn to the resource extraction process with the hope of determining best practices. In Canada, ongoing discussions and challenges about the importance of land to Indigenous Communities, their culture and traditions are commonplace, but in Brazil, legal precedents and policies do not appear as well developed. Indigenous land claims and resource extraction decisions at the countries’ top courts are of critical importance to both nations given that mining development impacts upon the social, economic, and cultural aspects of Indigenous Peoples in both countries. This research targets legal policies, commentary and Court decisions in Canada relating to Indigenous land and the mining industry, with an emphasis on constitutional law, to compare aspects of land claims and constitutional rulings and how they have influenced social policy on Indigenous lives in regards to reconciliation. There are constructive lessons for the Brazilian government emerging from the comparison regarding how Canadian constitutional law has framed Indigenous rights with regard to resource development. In this research, I have found in my analysis that the “duty to consult” it’s an important key element in the path for reconciliation with the Indigenous communities. This study revealed the influence of colonial social structures that still persevere and directly affect Indigenous communities in contemporary society.