Adequate consultation with First Nations is a top priority for any resource company that wants to dig up the ground in B.C.
But experts say good consultation varies from aboriginal community to aboriginal community, and businesses need to not only fulfil legal requirements but also step outside of the office and develop real relationships.
“The real point here is start early,” said Thomas Isaac, a partner with McCarthy Tetrault’s aboriginal law group and a former chief treaty negotiator for B.C.
“This is not the soft underbelly of your project in British Columbia,” said Isaac. “This is as important as your engineering plans for the project … that’s the fact of life in British Columbia.”
For years, industry, government and First Nations have been at odds about the development of everything from fish farms to mines to hydroelectric dams.
Earlier this year, Business in Vancouver caught up with the BC First Nations Fisheries Council, which was protesting a Department of Fisheries and Oceans’ decision to assume control of the province’s aquaculture industry (see “Aquaculture clash” – issue 1106; January 4-10).
The reason for the protest? A lack of meaningful consultation.
The protest echoed similar sentiments from Cariboo First Nations whose opposition to Taseko Mines’ (TSX:TKO) Prosperity project reached a fever pitch last fall (see “Chasing Prosperity” – issue 1101; November 30-December 6, 2010). The frustration has become so tiresome for some groups that they’ve found innovative ways to help aboriginals and business find common ground.
In 2009, the Industry Council for Aboriginal Business launched a leadership exchange program, in which industry and First Nations leaders traded places to better understand one another’s concerns. Participants considered the program a great success.
Still, legal experts say B.C.’s consultation requirements are, at best, vague and arcane.
Keith Bergner, a partner with Vancouver’s Lawson Lundell LLP, said the purpose of consultation is to protect unproven or even established aboriginal rights from irreversible harm.
Yet few treaties in B.C. have been settled, which means that consultation has become a “forward-looking” exercise while treaty claims work their way through the system.
Meantime, the courts say the government can make land and resource allocation decisions but it has a duty to consult.
“So what does that mean? And that’s the question we’ve been struggling with at least for the past seven years if not longer,” said Bergner.
In truth, there’s a legal answer and there’s a practical answer.
“The legal obligation to consult belongs to government not to industry,” Bergner said. “The practical answer is not many businesses want to leave the fate of their business solely in the hands of government.”
The situation has created a significant disconnect between what a business is legally required to do and what it should do to help a project get approved. That, in turn, has generated much uncertainty around resource projects in B.C.
Bergner said that uncertainty leaves business frustrated about the length of the permitting process, aboriginals frustrated with the status of their claims and government faced with making decisions amid a polarized environment.
“So industry is more often than not caught in the middle of this debate with the government on one side and the aboriginal group on the other side as to what is or is not adequate.”
Bergner believes adequate consultation is measured on a sliding scale: it changes from community to community depending on the proposed project’s size and impacts.
He believes consultation law today is similar to what environmental law was 20 years ago, and it needs a proper framework to create certainty for the business community and First Nations.
In the meantime, Isaac suggests companies adopt a dual-pronged approach to consultation. First, the company needs to ensure that it meets the legal requirements of consultation. Second, it needs to build strong relationships to manage project risks.
Isaac also believes companies should be open to negotiations and find out who they’re negotiating with before they sit down at the bargaining table.
“It’s not just a giveaway; there’s quid pro quo,” Isaac said. “You’re buying something here. You may be buying a relationship, you may be buying certainty … and that’s worth something, so you’re not giving anything away here.”