Yes or no is the way to go in Aboriginal resource development

Aboriginal Law | Consultation and Accommodation | Resources and Environment | UNDRIP

A group of stakeholders consisting of resource companies, financial institutions, environmental groups and First Nations have taken a stand and are insisting that free, prior, and informed consent (“FPIC”) be a condition to development occurring in the traditional territories of Indigenous groups.

This week, the Boreal Leadership Council (“BLC”) released a report urging both the Canadian government and industry proponents to implement FPIC when working with Indigenous groups. This report is another instance amongst the mounting international efforts and evolving court direction in support of FPIC.

Changing the economic and political landscape in Canada requires more than just positive endorsements and public announcements of support, however: it also requires concrete mechanisms for effective implementation. The report picks up on this, as it calls for government, industry and Indigenous communities to all play an active role in implementing FPIC— an effort subject to ongoing development and commitment. Of particular significance is the fact that large business stakeholders such as Tembec and Suncor were amongst the group driving this initiative and proclaiming support for FPIC. The report signals a need to address the shortcomings of the current state of law and federal policy by asking that real work be done to ensure FPIC becomes a practical reality in Canada.

Government, Industry and Indigenous Groups Play a Role in FPIC Implementation

In addition to providing a useful overview of the current initiatives pursued both internationally and domestically to advance FPIC, the report lays out what role the government, industry and Indigenous communities should play in implementing FPIC.

Government

The report notes that even though the federal government disagrees with the consent provisions of the United Nations Declaration on the Rights of Indigenous Peoples, it still has a role in supporting FPIC even within the parameters of its limited support. The government can, for instance, ensure consultation and accommodation occurs in the context of development projects and, as such, should provide clear direction to proponents on consultation expectations. This can give proponents the opportunity to negotiate agreements that support FPIC. This may not be a requirement of “consent” per se, but it at least inches closer towards that principle, by directing and ensuring industry proponents and Indigenous groups come to an agreement on development, and the ways in which it should proceed.

Other roles of the government include working with Indigenous governments to create a legal framework for strategic and collaborative decision-making processes, and providing funding to Indigenous communities for internal capacity development.

These recommendations are particularly interesting as they come in the midst of a federal election campaign, where each of the four political parties has taken a stance on FPIC. Both the Liberal and Green Party have committed to implementing recommendations from the recent Truth and Reconciliation Commission Report (“TRC Report”) including those related to FPIC (with the Liberals committing to all 94 recommendations). The NDP has said that they will act on some of the recommendations of the TRC report, including making moves toward recognizing FPIC. Unsurprisingly, the Conservative party has only promised to “review” the recommendations of the TRC report, and have taken a stance against FPIC.

By comparison, the Ontario government has already indirectly implemented FPIC. The Aboriginal Loan Guarantee Program (“ALGP”) and Aboriginal Adder under the Large Renewable Energy (“LRP”) Program create an incentive for proponents to partner with Indigenous communities and obtain their consent in proceeding with a project. In exchange for a project receiving a price adder under the LRP process, which is tied to proportionate Indigenous project ownership, the developer must partner with Indigenous groups and assist their partner in obtaining a loan guarantee under the ALGP. The result is that proponents will place themselves in a competitively advantageous position if they obtain the consent of Indigenous groups. In addition, Indigenous communities are accessing capital with lower borrowing costs to purchase an equity stake in projects. Although the programs are not without restrictions, they are positive efforts and provide a practical example of what Aboriginal consent can look like.

The effects of Ontario’s leading initiatives, moreover, have interprovincial impact. Alberta, through their Climate Change Advisory Panel, is currently trying to develop a renewable energy plan for the province and is looking at Ontario’s experience as precedent.

Industry

The report calls on industry proponents to directly engage with Indigenous communities and to take into account their existing protocols, culture, value and rights. The report also encourages the use of impact benefit agreements to guide project development and management, and advocates the use of community-controlled research, such as traditional knowledge. The report further notes that proponents should financially support Indigenous groups to ensure that their engagement and participation in negotiations with proponents can be meaningful.

Opponents of FPIC often raise the issue that requiring consent from Indigenous groups will create a chilling effect and act as a barrier to resource development. The concept of partnering with Indigenous groups and obtaining consent should not be something that is feared. Indigenous governments will not act in arbitrary ways when deciding whether to pursue resource development if held to the same standard of reasonableness as any other level of government. Further, proponents will quickly learn how to identity those Indigenous groups that are interested in development projects from those who are not.

Indigenous Communities

The report asserts that the role of Indigenous communities is to set clear expectations regarding land use planning and to identify and share any guidelines, protocols or band council resolutions that the communities have pertaining to development within their territories. To do this, all players involved in resource development have a role in building the internal capacity of Indigenous communities. Strengthening internal capacity will ensure Indigenous groups can participate in negotiations with proponents and exercise consent in a meaningful way. It is important for indigenous groups to truly understand what they are consenting to. As the report notes, FPIC cannot be obtained if there is coercion, intimidation, manipulation or pressure.

To further strengthen their internal capacity, the report encourages Indigenous groups to consider implementing units or departments to oversee aspects of negotiations and/or project execution. This will likely also aid in calming community members’ concerns, as it can lead to the direct involvement of community members in the oversight of some of the environmental and cultural aspects of resource development.

Indigenous groups need time to consider the development occurring on their lands if a project is to be defensible to community members. Factors to consider are whether the project is a good fit, the benefits of the project (and whether such benefits outweigh the costs), project costs and financing, and the presence or absence of employment opportunities. As the report indicates, impact benefit agreements are defensible to community members, as they demonstrate the benefits and protections that can be achieved when consent is given.

FPIC Should Be Understood By All Members of Society

It is clear that FPIC is an emerging pillar of respectful resource development occurring within Indigenous lands. The report should be understood in an even larger context, however, and the report itself alludes to this when it says, “The most effective and efficient means to achieve agreement and consent will need to be understood and embraced at many levels of our society and our governing institutions.”

The BLC report thus helps to point out that all members of Canadian society have a role to play in understanding what it means in the eyes and minds of Indigenous groups to have consent and walk hand in hand as partners. Interestingly, this theme is echoed in many of the final recommendations of the TRC, which challenges many sectors of Canadian society to think about what meaningful Indigenous self-determination means (in education or church structures, for instance).

In the end, FPIC is a standard that should extend beyond just the government and industry level, and be applied within levels of civil society, including education systems and religious groups. The BLC report provides good stepping stones for thinking, practically, about what meaningful Indigenous consent entails.

By Ashley Stacey