As discussed in previous articles in this series, the Supreme Court of Canada’s Tsilhqot’in Nation v. British Columbia decision alters the legal landscape for development on proven Aboriginal title land: subject to a limited right of the government to infringe Aboriginal title where justified, Aboriginal groups have the exclusive right to decide how the land is used and benefit economically from those uses, and any development on those lands requires their consent.
This new landscape undoubtedly provides Aboriginal groups, both before and after title is proved, the ability to take a stronger and more pro-active approach to the management of development in their traditional territories. Forward-thinking resource developers will adapt to this new landscape by seeking the free, prior and informed consent of First Nations groups to development. Those developers that do not adapt are at risk of being left with undevelopable projects lacking social licence.
In this Part IV of the series, we explore what consent is, why responsible governments and project developers seek consent of affected Aboriginal groups and the ways in which they can most effectively do so.
WHAT IS CONSENT?
Obtaining the consent of indigenous groups before carrying out activities which may compromise the groups’ use of the land is not a novel concept and exists in many forms and forums. For example, the notion of consent of indigenous people to certain development exists at international law. Article 10 of the United Nations Declaration on the Rights of Indigenous Peoples provides that: “Indigenous peoples shall not be forcibly removed from their lands or territories […] without the free, prior and informed consent of the indigenous people concerned.”
The concept of indigenous consent to development also exists in various other norms and standards in the global economy. For example, the Equator Principles, a voluntary set of risk management principles for financial institutions, requires that “[p]rojects with adverse impacts on indigenous people will require their Free, Prior and Informed Consent.”
In Canada, even prior to Tsilhqot’in, the Supreme Court had noted in both Haida and Delgamuukw that some government decisions that impact asserted Aboriginal rights and title “may even require the full consent of an [A]boriginal nation.” After Tsilhqot’in, Aboriginal consent in Canada is now required for projects to proceed on proven Aboriginal title land (absent circumstances that could allow the government to justify infringements, as discussed in Part II of this series), and enhances project certainty for projects on asserted Aboriginal title lands.
WHAT IS THE STATUS QUO?
In the recent past, Canadian governments have often sought consent for development from Aboriginal groups with asserted (not proven) title claims, usually through agreements such as treaties, revenue sharing agreements and shared decision making agreements. Additionally, responsible project developers have increasingly recognized the strategic value in obtaining project certainty by concluding Impact Benefit Agreements (IBAs) with affected Aboriginal groups to secure project support in exchange for project-related benefits.
Notwithstanding these initiatives, there are many instances where projects have been permitted and constructed without the consent of First Nations groups. All of these projects are now arguably at risk: the Tsilhqot’in decision is clear that a project can be cancelled if it is situated on land where Aboriginal title is proved and consent was not, or is not, obtained. In the post-Tsilhqot’in world, governments and developers would be well advised to proactively seek Aboriginal consent for these existing, as well as any new, projects.
HOW SHOULD FIRST NATIONS CONSENT BE OBTAINED?
Consent Obtained by Government
Given the altered landscape regarding the nature of Aboriginal title, we expect that many Aboriginal groups will re-think the sufficiency of certain government agreements, including agreements such as Economic and Community Development Agreements, Forestry Consultation and Revenue Sharing Agreements, and Shared Decision-Making Agreements, on the basis that they are not sufficient in the post-Tsilhqot’in landscape to justify the infringement of Aboriginal title. If the government is serious about obtaining the free, prior and informed consent of Aboriginal groups post-Tsilhqot’in, it must take steps to change the format of these pre-treaty agreements by, among other things, increasing revenue sharing arrangements and further incorporating the affected Aboriginal group’s perspective into the shared decision making processes.
Treaty is, of course, another tool available to the government to obtain consent for certain uses of the land. In a future article, we will discuss our analysis of the future of the British Columbia treaty process in light of recent court decisions.
Social Licence Obtained by Project Developers
To develop its social licence and do their part to achieve Aboriginal consent to development, projects developers should consider the following:
1. Responsible development – Many Aboriginal groups view Aboriginal title as a right and a responsibility – meaning that Aboriginal title entails obligations to act as steward of the land for future generations. This means that environmental protection measures are critical and developers should develop their projects with “gold standard” environmental protections. Perhaps more importantly, this also means that forward-thinking developers will seek meaningful inclusion of Aboriginal perspectives in project management – be it through board seats, advisory committees, or actual project management roles.
Responsible development also means economic inclusion of Aboriginal groups at all levels of the project – from employment to contract opportunities to provision of goods and services to ownership. Additionally, project developers can often play a key role in the development of prosperous and healthy communities – and developers willing to explore avenues to enhance social and cultural values are more likely to find supportive Aboriginal partners.
2. Early engagement – In the wake of Tsilhqot’in, more onerous government consultation with affected Aboriginal groups may result in delayed decision-making with respect to the various government authorizations needed to develop a project, particularly if an Aboriginal group has not been engaged early and meaningfully. By engaging with affected Aboriginal groups early, project developers have the advantage of understanding the group’s concerns early in the process and can adapt project features accordingly – this greatly reduces project delay risk.
3. Alignment of Interests – Project developers should strategically work with Aboriginal groups to meaningfully align interests of their First Nations partners with their own. More and more frequently, this means participation by Aboriginal groups as partners with an equity or royalty stake in the project. However, financial involvement is not the end of the conversation. Alignment of interests can also be found in collaborative management practices, joint-stewardship initiatives and other shared decision-making mechanisms.
The strategic value of project certainty through First Nations consent cannot be understated. Tsilhqot’in has increased the need for developers and governments to secure Aboriginal consent and those who fail to do so increasingly risk stalled or defeated projects.
If you would like more information regarding the implications of the Tsilhqot’in decision or on Aboriginal law issues generally, please contact Rob Miller, Practice Group Leader for the First Nations Economic Development Group: 778-945-3060 or email@example.com.
Photo credit: Lloyd Guenther (laguenther on Flickr)