IFC Performance Standards Mitigation Hierarchy and the Important Role of "Offsets" in Sustainable Development

A primary focus of the environmental and social management program required by the Equator Principles and Performance Standard One of the IFC Performance Standards on Environmental and Social Sustainability (IFC Performance Standards) is mitigation of identified risks, along with the implementation of performance improvement measures. To this end, Clients are expected to design a mitigation approach that follows a structure — referred to as a “hierarchy” — of avoidance,minimization and compensation or offset.  While offset may be the least desirable mitigation strategy, it has a very important role to play in the implementation of the IFC Performance Standards and the promotion of sustainable development.

Kearney & Labeau: Yukon Court of Appeal (Canada) confirms that “open-entry” mining system does not preclude the application of the duty to consult

In December 2012, a three-judge Court of Appeal for Yukon decided unanimously that the recording of a mineral claim by the Mining Recorder, pursuant to Yukon’s Quartz Mining Act (the Act), triggers the duty to consult. Furthermore, the court held that merely providing notice of recorded claims to affected First Nations was not necessarily sufficient to discharge the government’s obligation to consult. The decision has significant implications for the mining and prospecting system in Yukon, and potentially for other open- or free-entry systems in Canada.  This case also has implications for our understanding of FPIC, a requirement of the IFC Performance Standards, which is analogous to the consultation obligations of highly developed legal regimes like Canada.