April 20, 2015
Set aside that it just might be the right thing to do, or that your dialogue may result in the necessary support, consent and social license to operate on traditional territory. The most basic rationale for good Aboriginal relations is that it is a legal necessity and will help reduce legal risks associated with a costly, drawn-out dispute with territorial rights-holders.
To begin, the Supreme Court of Canada has affirmed that the Crown has a common law obligation or “duty to consult” with First Nations, Métis and Inuit communities on the occasion when a government decision might have an impact to Aboriginal and Treaty Rights. In turn, many Crown agencies, both provincial and federal, require project proponents and permit applicants to engage with indigenous communities in discharging this duty to consult.
Rightly or wrongly, governments have placed this burden of consultation squarely on the broad shoulders of project proponents. That’s right. It’s not the Crown’s duty alone. Inevitably, you are going to have to do most of the heavy lifting.
Further, their respective Departments of Justice have placed a high standard on the way companies engage with Aboriginal communities. Standard letters of application, an ad in the newspaper or a notice on your corporate webpage are not going to cut it these days. Governments may have specific requirements, as will Aboriginal communities.
Every so often, a court case comes along that challenges the status quo with regard to indigenous rights. Almost always, the higher courts are siding with indigenous people. Aboriginal rights are not open to interpretation. They are a reality. Many companies that want to work in indigenous traditional territory are going to have to adapt into a new way of doing business with Aboriginal people.
If an overzealous developer chooses to ignore these realities, they are rolling the dice on a possible court challenge that they may inevitably lose. Legal costs and the costs of project delays can be staggering and put an entire project at risk. Not to mention, they are now on the wrong side of history and the growing curve of realization. The old way of doing business of cutting backroom deals with the government and ignoring Aboriginal communities are long gone.
There is hope. Even a modest Aboriginal Relations strategy can do wonders in establishing a relationship with First Nations, Métis or Inuit communities. These relationships offer a forum to build understanding, solicit good ideas and demonstrate much needed benefits to indigenous communities.
It’s never too late to turn the relationship around. All it takes is good will, some planning and a willingness to find common ground. Consider it building a new partnership, rather than giving in to a compromise.