• Dione McGuinness

UNDRIP will impact the way industry does business in Canada. Is your organization prepared to adapt?

During the past few months we’ve heard announcements from various levels of government on policy changes and planned initiatives that are intended to directly align with and implement the UN Declaration of the Rights of Indigenous People (UNDRIP). It’s important that industry understands how these changes will impact the way organizations conduct business with Indigenous communities to mitigate risks that could delay projects. This blogpost provides an overview of some of the changes at provincial and federal levels, and engagement tips to help organizations navigate the changes.

Provincial Initiatives

The department of Indigenous Relations and the Aboriginal Consultation Office are currently engaging with First Nations and Metis communities, municipalities and members of the oil and gas sector regarding proposed changes to First Nations and Metis consultation policies. In his keynote address at the 11th Annual Western Indigenous Consultation & Engagement Conference on February 20, 2018, Richard Feehan, Minister of Indigenous Relations, spoke about the importance of relationship with First Nations and Metis people in Alberta, and renewal of Alberta's consultation policies. In addition to addressing current issues such as consultation timelines and matters subject to consultation, the policy changes are likely to include enhancement for consultation capacity of First Nations and Metis communities, and a potential legislative framework. Draft policy is expected to be presented to government for consideration in fall 2018.

Federal Initiatives

Several key bills supporting Indigenous rights and the implementation of UNDRIP have recently been announced. In November 2017, the Government of Canada introduced Bill C-262: An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. Signifying support for the implementation of UNDRIP in Canada, Bill C-262 passed second reading on February 7, 2018, and was followed by the announcement of a new legal framework to recognize and implement Indigenous rights on February 14, 2018. It is expected that the framework will be developed through engagement with Indigenous peoples, and legislation implemented by October 2019.

On February 6, 2018, the Government of Canada introduced Bill C-68: An Act to amend the Fisheries Act and other Acts in consequence. A significant change under the Act will be the introduction of mandatory consideration of any adverse effects on the rights of Indigenous Peoples of Canada. Two days after Bill C-68 was introduced, the Federal Government announced 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. Proposed amendments to Bill C-69 include a shift from an environmental, to a broader impact-based assessment process, and the addition of a new early planning and engagement stage for projects. Bill C-69 redefines “public interest”, including evaluation of the extent to which projects contribute to sustainability. It also considers the impacts of projects on Indigenous communities and the rights of Indigenous peoples of Canada, recognized and affirmed by section 35 of the Constitution Act, 1982. New requirements of the bill include moving from a strictly science-based approach to include Indigenous traditional knowledge in projects. Potential adverse impacts on the rights of Indigenous peoples will be considered when determining if an impact assessment is necessary.

Engagement Assessment & Opportunities

From an engagement perspective there are several areas that will not only address non-technical risk and fulfill regulatory and legislative requirements as they continue to evolve but establish foundational relationships that will be needed to build support for projects and support the implementation of UNDRIP. A strong foundational relationship will be imperative moving forward as regulatory and social landscapes continue to evolve. Depending on the scale, scope and anticipated impacts of a project, proponents may want to consider some or all of the following engagement opportunities:

1. Engage early.

Early engagement serves several purposes. It allows time to develop relationships, learn about communities’ values, needs and interests, build a foundation of trust, and understand impacts of the project on communities, so that they can be mitigated and addressed during project planning. If done well, early engagement will also reduce the likelihood of delays during the formal “Big C” stage of consultation.

2. Engage the community – not just the leadership.

There is an increasing expectation by communities, governments and courts that consultation not be regarded as simply a checkbox exercise. Proponents need to demonstrate that they are listening and responding to feedback from Indigenous communities, especially regarding infringement of treaty rights. Recent policy and legislative changes also suggest that as proponents aim to secure “free, prior and informed consent”, they reconsider the meaning of consent: Who provides it? How is it provided? It likely means that proponents will need to engage more broadly with communities – not just leadership and consultation offices. This includes providing appropriate opportunities for communities to share their input and concerns and responding to communities on how this input was considered and impacts mitigated, where possible. Broader community engagement may also offer stability for proponents when leadership changes.

3. Include Indigenous Traditional Knowledge early in planning.

The recent federal bills, along with the creation of a new Canadian regulator, grant more discretion to consider impacts on Indigenous people and Treaty rights. The inclusion of Traditional Knowledge in projects will assist proponents in understanding and mitigating impacts at an early stage of planning.

4. Be prepared to address cumulative impacts.

Recent court cases, such as Yahey/Blueberry River v. BC, illustrate the concern about environmental cumulative impacts on Indigenous traditional territory. It is becoming clear that projects can no longer be considered in isolation. Whether from oil and gas, mining, renewable energy or forestry sectors, the collective impacts to environment raise the question of rights infringement.

Regulators are also responding to stakeholder concerns through initiatives such as the Alberta Energy Regulator’s Integrated Decision Approach, and the proposed Canadian Energy Regulator’s impact assessment process, which will examine broader project impacts with an aim to foster sustainability.

5. Consider expanding engagement to include communities who have asserted traditional territories, even if they are not currently recognized by the ACO.

Traditional territorial boundaries are not fixed; they may be expanded or asserted at any time, creating uncertainty for project proponents. While this advice may not apply to all projects, where the level of risk and project scope are significant enough to warrant, proponents may wish to broaden engagement efforts to include Indigenous communities who have asserted traditional territory, even if it is not yet recognized by the Aboriginal consultation office.

6. Fund meaningful participation.

Funding participation, such as consultation office staff, technical reviews or other capacity building, ensures that Indigenous communities have both the resources and expertise necessary to understand impacts on their traditional territories and treaty rights. If negotiations fail and proponents end up in court, cases where funding for participation has been provided typically are considered more favourably than where funding was not provided.1

Implementing UNDRIP can only be achieved by engaging in a meaningful way with Indigenous communities; failure to do this will likely come at a high cost and could pose significant project risk for proponents. While it may mean allowing for additional time and costs early on, it will save more time and money caused by judicial or regulatory delays, or the disintegration of relationships with Indigenous communities.

The coming years will be a transition period for industry as these commitments are translated into action. Cooperative approaches that start early will help industry and Indigenous communities determine how to work together for the long haul. This process will look different for every community, project and proponent, but key for success will be a tailored strategy that considers each party’s interests and produces mutually beneficial outcomes. By taking the time to do it right, proponents will increase the likelihood of project success, shorten overall timelines and avoid expensive project delays. For strategic engagement advice on this, contact info@brittland.com We look forward to chatting with you!

1 Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 (CanLII) and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41 (CanLII


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