FEATURE

RECONCILIATION

TIMEWith dozens of large projects hanging in the balance and legal precedents in their favour, Aboriginal groups now have the leverage to resolve land claims and other issues. Direct, good-faith negotiations can help avoid lengthy regulatory and court battles BY BRIAN BURTON

ACROSS , the long neglect of Aboriginal issues is now confounding the nation’s eco- nomic development as never before. From Plan Nord in Québec and the Ring of Fire in , to the oil sands in Alberta, liquefied natural gas (LNG) and hydro in British Columbia and pipelines coast to coast, big projects and legal precedents have given Aboriginal groups the leverage to insist on resolving land claims and other is- sues that have festered for generations. In its November 2015 report, Economic Development in Jeopardy? the business-focused Fraser In- stitute notes that, in British Columbia, overlapping Aboriginal land claims account for more than 100 per cent of the territory of the province. Fraser says the recent Stellat’en First Nation v. Rio Tinto decision, enabling legal actions against private parties for damages on Aboriginal title claims, “has the potential to create an environment of heightened uncertainty for all existing and future economic development projects. ...” Lawyers with extensive expertise in the field say industry should continue to drive consultations and press forward into commercial deal-making for individual projects. Direct, good-faith negotia- tions between industry and Aboriginal groups, they say, can frequently avoid protracted regulatory and court battles. But those same experts insist that federal and provincial governments have an ines- capable constitutional duty to become fully engaged in negotiations, both for individual projects and in finding the way to a broader Canadian reconciliation with indigenous peoples. “This is becoming a serious situation for our nation as a whole and it directly affects the functioning of the economy,” says Heather Treacy, with the Calgary office of DLA Piper (Canada) LLP. “We’re really at a juncture where, if we want continued economic prosperity in Canada, we need to address SHUTTERSTOCK PHOTO:

Reprinted with permission Lexpert Magazine – June Issue 2016 © Thomson Reuters Canada Limited.

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“When the majority of the people are Aboriginal, you’re coming to their home and you have to respect them.”

NADIR ANDRÉ > BORDEN LADNER GERVAIS LLP

these issues and come to a resolution.” To be sure, there’s a long history of in- dustry leading consultation and accom- modation with Aboriginal groups — a history that actually predates many impor- tant court decisions in the area. After all, proponents are the ones who understand Besides clearing regulatory hurdles, ben- drilling. But Pratt says “the vast majority projects in detail. Based on that notion, efits to companies can include securing lo- of early-stage exploration can address such governments across the country have been cal workforce support in remote communi- concerns easily, once potentially adverse directing companies to communicate and ties. For non-Aboriginal service and supply impacts are clearly identified.” It’s worth a consult with local communities, both na- companies, “formal collaboration with the company’s best efforts to commit the nec- tive and non-native, for several decades as IBA community” can also improve their essary time, energy and personnel toward part of the project permitting process. bids on IBA projects, Pratt says. building a solid rapport. Now, with dozens of projects hanging “This type of capacity building is in its “It’s all about dialogue and building the in the balance, companies are increasingly infancy in Ontario but it’s where, going relationship,” she says. “It’s safe to say that, entering into direct negotiations with Ab- forward, there’s room for innovation,” at this stage, no mine will be constructed original communities to work out detailed Pratt says. “Where it’s still a bit tricky is in in Ontario without IBAs with adversely af- impact benefits agreements (IBAs) aimed the earliest stages of mining projects.” fected Aboriginal communities. The more at securing contractual, long-term indig- difficult question for a proponent – given enous support for developments. THE PROBLEM LIES in the discrep- the increasing challenge of overlapping tra- “Time is money,” says Tracy Pratt, with ancy between rising expectations of First ditional territories and conflicting claims Fasken Martineau DuMoulin LLP in To- Nations and the small scale and uncertain – is with which Aboriginal community to ronto. Direct negotiation of an IBA can nature of early-stage exploration, she says. negotiate an IBA. It’s a fundamental issue streamline regulatory approvals by docu- While Aboriginal groups may be impa- facing developers and in On- menting consultation, accommodation tient for opportunity, mining companies tario and elsewhere.” and project support. see core drilling and other early-stage ex- Treacy says the starting point for a com- Pratt says First Nations in BC have more ploration as low-impact activities with only mercial agreement has to be “a realization experience in IBA negotiations but over the a modest chance of subsequent develop- that consultation is not a short-term, quick past several years, IBAs have increasingly ment. At this stage, Pratt says, there are few process but rather the building of a long- been used in Ontario. “In cases where First employment and business opportunities. term relationship [and] a recognition that Nations lack capacity to develop a project Moreover, exploration generates no rev- the values of the Aboriginal community or create a supply or service business on enue and investors want to see their money may not always accord with those of the their own, we’re starting to see the use of “going into the ground.” [larger] society.” She adds that, from long joint ventures, limited partnerships or oth- Alternatively, the Aboriginal commu- experience, indigenous peoples are very er corporate structures.” She says these ar- nity may be strongly averse to seeing its skilled at assessing the sincerity of their rangements may provide equity interest, a hunting seasons, medicinal plants or burial counterparties in negotiations. source of revenue or training, employment sites disturbed by a mining company or its She says successful IBAs are likely to in- and capacity building. contractor seeking to conduct exploration clude company commitments to: a frame- SHUTTERSTOCK PHOTO:

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negotiations with each of two or more Ab- confidential. But confidentiality may soon original groups and Treacy says that, in her be swept aside by the new Extractive Sec- experience, a lack of understanding of dif- tor Transparency Measures Act, aimed at ferences among Aboriginal communities supporting international anti-corruption is one of three frequent contributors when efforts. The Act requires energy and min- negotiations fail. The other two are begin- ing companies to disclose all payments to ning consultations too late in the develop- governments exceeding $100,000 per year ment process and a lack of trust, respect in any one of seven categories, and this will and ongoing communications. include First Nations governments as of “In other words,” she says, “hurried, one- June 1, 2017. off consultations do not work.” Isaac says that in future this could lead to Tom Isaac, with Osler, Hoskin & Har- public disclosure of agreement terms that court LLP in Calgary, says companies have would previously have been confidential to know the business case for their project — potentially making negotiations more in reasonable detail before they contem- difficult, rather than less so, and likely plate negotiating an IBA. And, he adds, more expensive. And he wonders whether there’s no standard-form contract. “There’s Ottawa has dual objectives in extending no cookie-cutter approach. Companies the Act to cover First Nations. “What’s the want to know, ‘What’s the market rate for purpose of disclosure?” he asks. “Is it anti- an IBA?’ There isn’t one. What makes a corruption or is it guiding the market?” good deal for one company or one Aborigi- Nadir André, a partner with Borden nal group may not work for another com- Ladner Gervais LLP in Montréal and him- pany or another Aboriginal group.” self a member of the Schefferville, Que., Isaac adds that companies have to under- Innu community, says freedom of con- work for ongoing communications and stand that in negotiations with First Na- tract may provide Aboriginal groups and partnership over the life of the project; tions “there’s not necessarily a willing buyer companies a partial solution to the current training and employment; and contract- and a willing seller.” Aboriginal priorities logjam between Ottawa, the provinces and ing opportunities or revenue sharing, may not include a major mining project First Nations. André advises his Aborigi- nal clients that taking a project developer to court should be a last resort in the effort to ensure access to economic opportunity. “I tell clients, it’s like you take a quarter “This is becoming a serious and you flip it. You win or you lose.” Far situation for our nation better, he says, to negotiate for mutual ben- as a whole and it directly affects efit. Beginning in 2010, the Innu of Schef- the functioning of the economy. ferville intermittently blockaded four iron We’re really at a juncture where, mines and have since negotiated IBAs with if we want continued economic all but one. prosperity in Canada, we need André cautions companies that, to be to address these issues successful, deals must be adapted to Ab- and come to a resolution.” original realities and this takes considerable forethought. He cites the Innu agreement with Tata Steel as a leading example. In HEATHER TREACY addition to training, employment and con- > DLA PIPER (CANADA) LLP tracting opportunities, as well as financial participation in the mine, he says, the Innu secured agreement that all project foremen would be bilingual, to accommodate the “where appropriate.” or pipeline. “You could be talking a differ- fact that the second language of the na- In return, Treacy says, the project pro- ent language,” which he says will require a tive community is French, not English. In ponent receives clear support and sign-off company to take a step back, be patient and counterbalance, Aboriginal workers were on project details by the local Aboriginal seek creative solutions. required to learn some basic English. community. But all experts stress that ev- To maintain a focus on living up to train- ery indigenous group has its own priorities THERE’S ALSO the emerging issue that ing and employment commitments, André and, where IBAs are concerned, no one size both companies and First Nations have tra- says, the company agreed to hire two train- fits all. A single project may entail separate ditionally preferred to keep financial terms ing and employment coordinators — one

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Taken together, legal experts read all this, and dozens of other decisions, to say there’s no getting around the duty of proj- “In cases where First Nations ect proponents and the Crown, both fed- lack capacity to develop a eral and provincial, to consult, accommo- project or create a supply date and seek genuine reconciliation before or service business on their own, we’re starting to see proceeding with any development on land the use of joint ventures, subject to treaty or land claim, proven or limited partnerships or other pending. “Project proponents have a mean- corporate structures.” ingful role to play, but the duty to consult ultimately rests with the honour of the Crown,” Pratt says. From Ontario to Alberta and the Yu- TRACY PRATT kon, excluding most of BC, major resource > FASKEN MARTINEAU DUMOULIN LLP plays inescapably rest on treaty lands that were long ago surrendered to the Crown in return for certain perpetual rights and ben- efits. Pratt points out, however, that treaty- for the company and an opposite number industry and First Nations is the concept holding First Nations retain hunting, fish- for the Aboriginal community. that, as the name implies, indigenous ing and trapping rights on these traditional The company has also instated cultural peoples were here first and retain certain lands and frequently feel a strong sense of sensitivity training for fly-in workers from rights. In Canada, the legal foundations connection to, and ownership of, ceded ter- the south. “When the majority of the of Aboriginal rights and Aboriginal title ritories. Companies dismiss this affinity at people are Aboriginal, you’re coming to reach back 250 years and are reinforced by their peril. their home and you have to respect them,” countless court decisions since then. “Showing up and saying, ‘Legally, that’s André observes. He says the company has Consistent with British colonial policy not correct,’ really doesn’t advance things,” backed up its policy, and in a couple of seri- of the day, the Royal Proclamation of 1763 she says. An approach by a developer that’s ous cases, workers have been dismissed. secured ancestral lands of the original in- perceived as hardline or confrontational As another example of cultural chal- habitants of British North America that can provoke anything from more difficult lenges, he says, hunting seasons are a major had not been specifically ceded to or pur- negotiations to regulatory delays, court part of Aboriginal life that simply must be chased by the Crown. fights or even blockades. accommodated. “If we’re 40 per cent of the In 1982 the Constitution Act affirmed Moreover, the Tsilhqot’in decision illu- workforce, we’re not all going to take our Aboriginal and treaty rights. In R. v. Spar- minates a sharp divide between First Na- holidays at the same time. But the Aborigi- row in 1990, the Supreme Court of Canada tions who accepted relatively paltry treaty nal employee will go hunting — with or said the Crown’s fiduciary duty to Aborigi- awards 100 years ago and those, like the without permission.” nal peoples can never be adversarial, speci- Tsilhqot’in, who have pursued far-reaching In an isolated community, such as Schef- fied the duty to consult and set out a test Aboriginal title claims into the 21st-centu- ferville, André explains, most jobs are sea- for justified infringement on Aboriginal ry legal arena. sonal and chronic unemployment is con- rights. In 1997, Delgamuukw v. British Co- “Just on the face of it, there’s a massive centrated in the indigenous population. lumbia saw the Supreme Court rule that discrepancy between treaty rights and the “The notion of full-time employment does Aboriginal title is protected by the Con- benefits of Aboriginal title,” Pratt says. In not exist. The value of work does not have stitution Act and includes the economic light of Tsilhqot’in, she says, a local First the same meaning and it has to be acquired. value of land. The court said reconciliation Nation may harbour plans for a court chal- People are getting used to it, but it takes should be the objective of all consultations. lenge to their treaty and a subsequent claim time.” He says these are some of the reasons In Haida Nation v. British Columbia, of Aboriginal title. A treaty challenge alone the mine has a formal second-chance train- the Supreme Court said in 2004 that the could take a decade or more to find its way ing program that coaches native employees duty to consult is grounded in the honour to the Supreme Court of Canada — mak- on the norms of the work world. of the Crown and that duty is engaged re- ing a separate IBA vastly preferable for any He notes that the recently signed Lab- gardless of whether title has been proven. company seeking to launch a project. rador Inuit Treaty with the government of In the 2014 Tsilhqot’in decision, the Su- Underscoring this concern, Newfoundland makes IBAs mandatory for preme Court recognized Aboriginal title Matawa First Nations leaders have made all major projects. “If every province would to a specific land claim for the first time. several public statements strongly suggest- do that, it would change the face of the The court further said that infringements ing their intent to pursue Aboriginal title country,” he says. will be judged on how they serve reconcili- on treaty lands covering the entirety of the ation between Aboriginal groups and the Ring of Fire, with its $60-billion mineral UNDERLYING ALL negotiations between general public. deposit estimate.

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In Wabauskang First Nation v. Minister SHORT OF TREATY challenges, there’s Crown. The duty to consult, therefore, rests of Northern Development and Mines et al., also the question of the adequacy of consul- inescapably with government and can’t be Pratt says, the Ontario Divisional Court tation with Aboriginal communities. entirely offloaded to the private sector. upheld the right of the provincial govern- “Industry clearly needs to engage and Bursey says the lack of consistent govern- ment to license infringement on Aborigi- consult with Aboriginal communities and ment involvement raises huge questions of nal land. Pratt says the Wabauskang out- drive deals forward,” Treacy says. But “it’s equity. “Companies have varying abilities come makes clear that if First Nations un- imperative that government be engaged. If to accommodate and Aboriginal groups der or any of the similarly worded the government does not consult and en- have different powers to negotiate. The dis- treaties (Treaties 1‒11) want to assert rights gage at the appropriate time, then the en- crepancies are becoming a lot clearer with to resources and revenue sharing, they’ll tire deal will be subject to challenge by the big LNG [regulatory] proceedings,” he says. have to challenge their treaties and seek Aboriginal community on the basis that “This private accommodation system that’s Aboriginal title through litigation in the the government did not fulfill its consulta- emerging is creating some really serious courts. “This has been a topic of consider- tion obligations — and the entire project problems that will only get worse.” able discussion with the Ontario govern- will be at peril.” She observes that various Isaac says “there’s lots of focus on what ment in the context of the Ring of Fire First Nations have decried the tendency of industry must do — but it’s coming from development,” she adds. governments to allow their constitutional trying not to point the finger at govern- “If anyone successfully challenges a duty to consult to be fulfilled by companies ment.” He says there’s a “constitutional treaty, of course, that changes everything,” and regulators, and that she expects the is- imperative” over every deal that demands Pratt observes. sue to go all the way to the Supreme Court government involvement. Beyond the re- “Many Aboriginal groups are of the view of Canada “soon.” quirement for government to consult on that the treaties themselves are not valid,” “All players [industry, Aboriginal groups each infringement that takes place on Ab- Treacy says. And while Ottawa and the and governments] need to be fully engaged original land, he says, there’s a need for a provinces insist the treaties are binding, it and government needs to demonstrate policy framework within which to negoti- remains to be seen how the courts will rule strong leadership to provide guidelines ate successful agreements. on these issues. that all parties can rely on,” Treacy argues. “You can’t just put it back onto indus- André notes that, leaving aside treaty “Government cannot drop in and out of try,” he says. “A company should look after challenges, 20 per cent of Canada, or a to- the process.” its own business interests. It should not be tal area the size of Mexico, remains open to David Bursey of Bennett Jones LLP in charged with the mantle of deciding, ‘Is this good for the economy of Canada?’ A company shouldn’t have to be worrying about that stuff. “There is a critical role for government “There’s no cookie-cutter to play in all of this,” he says. “The iceberg approach. Companies want to know, is how is all of this going to work? Some ‘What’s the market rate for an [impact Aboriginal groups get resource sharing and benefits agreement]?’ There isn’t others get nothing. Well, is that equitable? one. What makes a good deal for And the answer is, let’s not talk about it. one company or one Aboriginal group “We need to answer the bigger question,” may not work for another company Isaac says. “How do Aboriginal peoples fit or another Aboriginal group.” into the fabric of Canada — in their own unique way?” In its 1997 Delgamuukw v. British Co- lumbia ruling, André notes, the Supreme TOM ISAAC Court first called for “true reconciliation” > OSLER, HOSKIN & HARCOURT LLP of Aboriginal and non-Aboriginal rights. “Reconciliation is the key,” he says. “The Supreme Court is always asking for some type of reconciliation.” Aboriginal title claims. He says the possi- Vancouver says there’s an increasing ten- Treacy says the courts must take cases as bility of successful Aboriginal title claims dency to push the responsibility for con- they come and they’re largely confined to may give First Nations leverage to seek a sultation and accommodation onto the ruling on specific issues. “Courts do try to compromise in the form of shared-royalty private sector. But he says the result is a set down overriding principles, but if you agreements with provincial governments lack of coherence and equity that requires read between the lines, you can see pleas for and he’s heard one or two provinces may be a policy response. He says Haida Nation v. reconciliation,” she says. examining this as an alternative to fighting makes clear that the duty British Columbia Brian Burton is an energy land claims in court. to consult is grounded in the honour of the and legal-affairs writer in Calgary.

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