Over the last decade, Indigenous consultation and participation have become vital to successful infrastructure development in Canada. The issues raised by the Wet’suwet’en Hereditary Chiefs in respect of the Coastal GasLink pipeline were frequently in the news in late-2019 and early-2020, for example. Though public attention has been directed elsewhere during the COVID-19 pandemic, Indigenous consultation and participation in infrastructure projects will be crucial to fast tracking any “shovel-ready” projects for development, a key element of Canada’s economic recovery. There is a substantial opportunity for proponents and Indigenous groups who are committed to meaningfully engaging in project development to capitalize on the economic recovery incentives in the COVID-19 context, and to bring projects to successful completion in a timely and cost-effective manner.
Whenever a government permit or other measure may impact Indigenous rights, the duty to consult arises. What is required depends on the context, chiefly the scale of potential impacts on Indigenous rights.
Though the duty to consult is held by the Crown, the conduct of consultation is often delegated in whole or in part to a project proponent. To take advantage of the opportunity presented by the current desire to fast track “shovel-ready” projects, a proponent will need to plan its consultations from an early stage. Below are some fundamental principles that, in our view, underpin successful consultations:
Project proponents and Indigenous communities may want to consider various forms of Indigenous economic participation in a project. Opportunities may arise to partner with Indigenous communities which are eager to place themselves in a position to benefit from the economic recovery and related government initiatives. This can complement and assist the consultation process, as the Indigenous community will see that the project will benefit them, thereby aligning interests. It also helps to ensure that Indigenous communities benefit from Canada’s economic recovery.
Economic participation may take a variety of forms. A proponent may consider Indigenous employment and procurement opportunities on a project, and/or benefit agreements providing funds to the Indigenous group (either as a one-time payment or payments made over a number of years) that may be used for initiatives of their choice.
A proponent may also consider royalty payment structures, or an equity partnership with one or more potentially-affected Indigenous communities. The latter can be structured directly or through an Indigenous-led special purpose vehicle (see for example, the Wataynikaneyap Transmission Line Project). These structures are becoming increasingly common, and generally assist in garnering support for the project and benefiting nearby communities.
These approaches may minimize the risk of a challenge to the validity of permits, which even if unsuccessful may cause significant cost and delay to the project. Consideration should also be given to dynamics between the Indigenous group(s) that a proponent enters into an agreement with and potential impacts on consultations with other Indigenous groups.
A focus on meaningful consultation with potentially-affected Indigenous communities, and exploring opportunities for economic participation in the project, may take some additional time in early stages. Ultimately these tools are more likely to align interests in a manner that minimizes risk, and builds robust relationships that can support project development through successful construction and operations phases. These tools can be important in making a project truly “shovel ready”.
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