Navigating Uncertain Future Indigenous Engagement Requirements: A Road Map for Project Proponents

Torys Quarterly: The Future of Business in Canada

Proponents seeking to develop large energy, infrastructure, and mining projects in Canada face significant uncertainty regarding the future requirements for engaging with Indigenous peoples. Given that these engagements often take several years, future requirements (which are currently not known) may be used to assess ongoing engagement for projects. These requirements may be influenced by a number of factors, including:

  • The implementation of the United Nations Declaration of the Rights of Indigenous Peoples through Bill C-2621 and otherwise, especially with respect to how the concept of “free, prior and informed consent” will be put into practice.
  • The Government of Canada’s ongoing development of a Recognition and Implementation of Rights Framework. While the contents of the framework will be determined through engagement with Indigenous peoples, the government has indicated that the framework, as a starting point, should include new legislation and policy that will make the recognition and implementation of rights the basis for all relations between Indigenous peoples and the federal government going forward. Given the government’s practice of delegating to proponents’ procedural aspects of engaging with Indigenous peoples, this framework may affect project proponents.2
  • How Canada’s proposed Impact Assessment Act3 will play out on the ground, including the actual roles of Indigenous peoples, the federal and provincial governments and proponents (for more on the Impact Assessment Act, see "Government of Canada Unveils its Proposed Impact Assessment Act").

In summary, requirements for engaging with Indigenous peoples in Canada may profoundly change over the next few years, resulting in proponents having to re-do or address gaps in how they engage. The actual or perceived failure to properly engage may result in, among other things, necessary permits not being issued, the issuance of such permits being challenged and/or delays with respect to the project schedule.

Moreover, waiting for the requirements to crystallize is often not a feasible option given most projects’ schedules. All these changes work to create significant uncertainty for proponents on how to proceed in engaging Indigenous peoples.

Mitigating Future Engagement Risks

The good news for proponents is that the risks associated with such uncertainty can be mitigated—while potentially improving their projects and reducing the risks of permit delay and/or challenge. Three key mitigation measures that proponents can implement are to:

  1. understand the rights and context of Indigenous peoples potentially affected by a project;
  2. build relationships with such Indigenous peoples; and
  3. engage in interest-based dialogue with such Indigenous peoples.

Each of these measures is discussed briefly below.

Understanding Rights and Context

By a proponent undertaking an assessment of the rights and context of any Indigenous peoples potentially affected by a proposed project, the proponent will likely, among other things, better understand the Indigenous people’s rights, history, culture, way of life and current circumstances with respect to the Indigenous matters landscape. In short, better understanding gives a proponent a perspective and starting point for engagement.

Building Relationships

The proponent’s understanding of potentially affected Indigenous peoples can facilitate a proponent building respectful, strong, and mutually beneficial relationships. Of course, developing these relationships takes time and effort. However, such a relationship can ultimately be the difference between a project proceeding or going sideways when a future engagement requirement or issue arises that was not initially contemplated. In other words, a proponent’s relationship with potentially affected Indigenous peoples may be conceptualized as determining how they will travel together in partnership over the course of a project.

Interest-Based Dialogue

In our experience, a genuine dialogue regarding the interests (e.g., desires, needs and constraints) of potentially affected Indigenous peoples and a proponent is far more likely to identify any potentially acceptable options than a positional bargaining approach. Without such a dialogue, it seems increasingly unlikely that projects—especially contentious ones—will achieve the support of potentially affected Indigenous peoples and thereby avoid protracted litigation. Even if support is given, new future engagement requirements typically pose a greater risk to an arrangement struck by bartering than one developed through an interest-based dialogue. Interest-based dialogue effectively answers the question: where can the proponent go that is mutually acceptable to the potentially affected Indigenous peoples?

Conclusion

Future engagement requirements for proponents may be different from what they are today, but how (if at all) they will change is unfortunately not currently known. However, proponents can mitigate risk by charting a course that focuses on understanding the rights and background context of potentially affected Indigenous peoples and building respectful, mutually beneficial relationships with them, including engaging in interest-based dialogue.

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1 Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration of the Rights of Indigenous Peoples, 1st Sess, 42nd Parl, Canada, 2016.

2 Government of Canada, News Release “Government of Canada to create Recognition and Implementation of Rights Framework” (14, February 2018), online: https://pm.gc.ca/eng/news/2018/02/14/government-canada-create-recognition-and-implementation-rights-framework.

3 Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, 1st Sess, 42nd Parl, Canada, 2018.

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