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The Engagement Ring: Business and aboriginal groups need to work together

Thanks to government’s retreat, business and aboriginal groups have to figure out how to engage with each other

Sep 2, 2014

by Tim Querengesser

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Enbridge’s proposed Northern Gateway pipeline has been the subject of considerable opposition from First Nations
CPImages

Frank Bush has this great line to explain how industry and aboriginal communities often look at the word “engagement.” “I used to say, ‘We’re looking for a marriage and these companies are often looking for a one-night stand,’ ” Bush says, almost with a standup comedian’s delivery.

“The assumption that First Nations are just a pain in the neck that you have to throw a few beads and trinkets to is wrong. They’re your most valuable partner.” – Calvin Helin, author and businessman

Bush, aboriginal himself, is an oft-published pundit on aboriginal business and the director of information and marketing at the First Nations Finance Authority in British Columbia. He says many companies still do not understand why money or other short-term benefits often fail to convince ­aboriginal communities to endorse resource projects, or stop them from fully opposing them. And he says this lack of understanding isn’t just evident with resource companies. He’s watched it emerge with lawyers no less. Bush used to work for a Vancouver law firm that was working, like many others, with aboriginal communities in the lead up to Ottawa’s residential schools settlement. He says he stood watching as many of these firms went to remote First Nations communities, put up a booth and “proceeded to explain why they were the best law company in the world,” he says. “Basically it’s very patronizing – a company is just stating ‘We know so much more than you,’ rather than, ‘We’d like to answer your questions and give you information.’ ”

First Nations peoples are the fastest growing population in Canada. The land they control or have various forms of title over makes up well more than half of the country, and it’s often in areas where resource companies want to dig, like northern Alberta. And yet as has so often been the case in Canada’s past – and as a slew of current lawsuits and court battles can attest– companies far removed from an aboriginal worldview struggle to effectively engage – or achieve the much-discussed tests of consultation and consent– when they set about to dig. The situation may only get tougher. New clarity around ­aboriginal land title, thanks to the recent ­Tsilhqot’in First Nation victory at the Supreme Court of Canada, has made engagement more complex. But Ottawa’s recent retreat from its legal role of leading industry and aboriginal consultations is the biggest shift. In the new ­Canada, business and aboriginal communities must jointly define their own paths on engagement, rather than relying on the guiding hand of Ottawa. Unsurprisingly, there are many bumps along the new road, with many legal challenges surely waiting around the bend. But there are many opportunities, too, for both sides of the discussion.

Back in the 1980s, Bob Joseph used to help BC Hydro engage with aboriginal communities. He was so good at reaching deals for the utility that other companies would approach him, asking him to help them achieve success in their negotiations. Joseph quit the utility in 2002 and started Indigenous Corporate Training, which, as its title suggests, trains business leaders about aboriginal history and how to engage more effectively. He knew there was little choice in the matter for everyone involved and the need was great. The law requires meaningful consultation on almost any project that could affect aboriginal people on their territory, Joseph says. That’s fine and good, of course, but these consultations often see contrasting worldviews that make them complicated and frustrating for both sides. “There’s still a big school of thought that wonders, ‘Why do we have to treat [First Nations peoples] differently than anyone else?’ ” Joseph says. The biggest reason, he explains, is the law. The companies that struggle to accept that legal situation, Joseph says, are the ones who struggle to find success with resource developments.

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Then-Minister of Natural Resources Joe Oliver, left, shakes hands with Haisla First Nation Chief Ellis Ross after announcing approval of a long-term export license to LNG Canada Development for a terminal in Kitimat, B.C.
CPImages

Joseph’s company works to break down these “attitudinal” barriers on the part of non-aboriginal people and allow for good conversations to thrive. The ­potential for what he sees as the high-water mark for engagement agreements – joint ventures, equity sharing deals and workforce development pacts – is higher when those barriers come down. He points to examples such as Apache Resource’s ­development with the Haisla First Nation in B.C., of an LNG plant right on the reserve, as the next generation of engagement that leads to jointly beneficial arrangements between business and aboriginal communities. But he still sees the companies that don’t get it struggling. “Sometimes they just think this is good for the economy – there’s going to be jobs, that’s going to win the day and get this project approval – but I don’t think that’s the case,” he says.

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On that point, Dwight Newman agrees. Today, unlike generations past, the federal government has almost fully abandoned its legal obligation to facilitate consultation with First Nations on proposed resource projects, he says. And Newman, the Canada research chair in indigenous rights in constitutional and international law at the University of Saskatchewan, says it’s obvious when companies continue to miss this change. “If [companies] think government’s going to do all of it, and [they can] just follow the minimum legal obligations, that often doesn’t work very well,” he says. He points to the aboriginal consultation policy in Alberta, which since 2013 (despite opposition by aboriginal governments in the province) has seen industry delegated much more responsibility than before to achieve the well-publicized but little-understood “duty to consult,” as the extreme example of this retreat. Companies that are aware this actually requires them to work harder and for a longer period to reach mutually beneficial deals with aboriginal communities seem to do better in the new reality, Newman says. Those that don’t, face the courts. Consider Solid Gold Resources. The company chose not to consult with the Wahgoshig First Nation in northern Ontario about a proposed> mine and has since faced a court injunction that has stopped its activities. “It’s been a bit of a mess ever since,” Newman says, noting the company is now suing the ­Ontario government for $100 million for its losses ( it argues that the province ought to have taken the lead in consulting with the Wahgoshig). The companies willing to drop such thinking at the door and reach deals with communities are finding “that’s often working out better,” Newman says.

But it’s not that this message appears to have sunk in across the board. A quick look at the corporate engagement policies for many companies working with aboriginal people reveals approaches that begin and end with federal law. Imperial Oil’s first point in its aboriginal engagement guidelines, for example, is to respect “the legal rights of aboriginal people” and adhere to “government requirement.” In the new environment of engagement, Bush says, you need an expansive ­approach rather than a reductionist one. As he says, it isn’t just a legal thing: there is a different worldview at play in aboriginal communities. To understand it and work with it you need to be there, he says, and offer information and answer questions. He advises companies interested in collaborating with a First Nation to offer public forums to find ways to build win-win agreements with communities affected by potential projects. Even better, he says, would be for companies to offer workshops or other training for community members as part of these information sessions. “A lot of times, the people who [First Nations] hire for some of those [­engagement] positions don’t have a lot of formal training or experience, so any piece of paper they can get is very helpful to them, career-wise and also to the community – it’s part of capacity development,” Bush says. “There’s such a brain drain, there’s no one left on the reserve who has the formal training in project management, no one with an MBA or a law degree.” Trouble is, he says, this isn’t something many businesses are comfortable with. “It’s just not the industry standard. The staff aren’t usually that engaging – they usually hire a hand-shaky salesman who’s used to going to trade shows and conventions, standing there in a suit.”

Another issue is language and ownership, he says. Resource companies have a goal – access to land and then profit – but often don’t take ownership of damage other resource projects have done to land in the past in pursuit of those same goals. That leads to mistrust. “Nobody comes in and takes ownership,” Bush says. “If I was a company, that’s the first thing I would do.” Why? He says such a gesture allows the company to give First Nations respect and, critically, the power to fix the problem – their opposition – collaboratively. “You make the First Nations part of the solution rather than the ‘problem.’ ” Otherwise, “All they know is some stranger is coming to town and telling them they need to change the way they’ve been doing things forever.”

Earlier this year, Calvin Helin, already an author, motivational speaker and businessman, became a household name in Canada for proposing to build a ­pipeline completely differently than had ever been done. Rather than the Northern Gateway proposal, which has subsequently been ­approved by Ottawa (but not, critically, by many First Nations along the route), Helin proposed a First Nations-owned consortium to build an oil pipeline called Eagle Spirit, and do it using what he called its greater access to a “social licence.”

That social licence comes from deep engagement in the ­myriad aboriginal communities affected by the proposal, where, Helin notes, there is a diverse set of languages, dialects and cultures. To overcome this diversity, Helin says his project has used its community connections wherever possible to engage effectively. “Where we don’t have connections, we do a lot of work, research, and hire local people who are conversant in the issues and the people in the various communities that we’re dealing with,” Helin says. Even with these connections, when dealing with communities, you have to listen “probably four times as much as you talk,” he adds.

For companies hoping to learn from his example, Helin says there are simple rules to follow. Engage by spending time with those already engaged. “If you try to do a project, make contact early, be flexible and hire local people who know what’s going on, because if you bring people here, no matter how good their intentions are, they don’t understand the local lay of the land and you’re not going to get any traction.” And he explains that a social licence in a First Nation community is a conversation that is about something long term. “I think the main thing is to understand [social licence] exists. When you’re talking to First Nations groups, you shouldn’t be talking to them like the typical discussions are, what they call ‘Impact and Benefit Agreements.’ Those usually deal with some jobs and a few business opportunities. If you want to do business successfully with First Nations people, you’ve got to be talking about partnership. You have to have respect, you have to be honest and you have to be fair.” He says First Nations people engaging with business are “putting something on the table” in the form of a risk of having their rights imposed upon or, in the worst case, permanent environmental degradation as a result of a project. “The assumption that First Nations are just a pain in the neck that you have to throw a few beads and trinkets to is wrong,” Helin says. “They’re your most valuable partner.”

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