Third in a series
By KAREN OGEN-TOEWS
CEO, First Nations LNG Alliance
So far, I’ve talked about First Nations and governments’ role in reconciliation. This piece will describe industry’s role.
First, of course there are many legal reasons that industry has to interact with First Nations that are impacted by development projects. In fact, I would argue that companies have had to step up their game with First Nation relationship-building because governments have been slower to engage in a way that meets First Nation expectations.
Navigating these waters has been challenging for everyone – but especially for businesses that are looking for legal certainty to advance their projects. Companies need to ensure that First Nations are on side with projects. Courts have found that there is a duty to consult on both government and proponents.
Both federal and BC governments have spoken of building the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into their laws, but neither has fully explained just what that will mean in practice.
The key principles, of course, are Articles 19 and 32.2 of UNDRIP:
“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
Canadian courts to date have stopped a hair short of saying that First Nations have legal veto power over resource developments, and so have governments.
But some leading resource companies have accepted that (no matter what their corporate lawyers say) such consent is essential, and that bona fide “consultation and accommodation” is the way to get there.
In spite of these obligations, I believe there are other reasons why companies will play an important role in reconciliation in this country. The Truth and Reconciliation Commission uncovered some ugly truths about Canada. But it ended with 94 recommendations that will contribute towards reconciliation. For example:
Business and Reconciliation
92. We call upon the corporate sector in Canada to adopt the United Nations Declaration on the Rights of Indigenous Peoples as a reconciliation framework and to apply its principles, norms, and standards to corporate policy and core operational activities involving Indigenous peoples and their lands and resources. This would include, but not be limited to, the following:
(i) Commit to meaningful consultation, building respectful relationships, and obtaining the free, prior, and informed consent of Indigenous peoples before proceeding with economic development projects.
(ii) Ensure that Aboriginal peoples have equitable access to jobs, training, and education opportunities in the corporate sector, and that Aboriginal communities gain long-term sustainable benefits from economic development projects.
(iii) Provide education for management and staff on the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills based training in intercultural competency, conflict resolution, human rights, and anti-racism.
Ultimately, I believe, Corporate Canada has a huge amount of capacity to contribute towards one of our country’s greatest challenges – poverty on First Nation reserves.
There is so much that corporate Canada can contribute. Companies are ‘way more nimble than governments and have many ways they can contribute to sustainable Indigenous people, families and communities.
Companies also have great power to provide education to their own employees, but in some cases can contribute to broader education campaigns in Canada, because the other huge challenge in this country is the lack of knowledge on reconciliation, which requires huge public education efforts.
I believe there is so much more that companies can contribute outside the ‘letter of the law’ when it comes to reconciliation. And it can include all companies in this country, not just ones impacting First Nation territories.
Some companies have believed in implementing United Nation Declaration on the Rights of Indigenous Peoples standards, such as “free and informed prior consent” to projects long before these principles will be put into legislation. It’s just the best way to ensure First Nations support of projects.
Ultimately, change will come when all leaders of our country, First Nation, government, industry, and non-government organizations, come together to chart a way forward that ensures everyone can enjoy the quality of life that most Canadians take for granted.
Part 4, the next and final instalment in this series, will highlight my views on why I believe economic reconciliation is important to everyone in this country.
Part One of the series: First Nations participation in reconciliation
Part Two: Government’s role
Part Four: The road ahead
(This item posted here 31 Oct. 2018)