Energy and Forestry Firms Say Indigenous People Should Have Power to Nix Projects in Canada

Two major Canadian resource companies, one in energy and another in forestry, are among a coalition of groups calling on Canada's federal government and the private sector to give indigenous communities veto power over potential development on their lands.

The Boreal Leadership Council, which includes First Nations, conservation groups, financial institutions, as well as resource firms like Suncor Energy Inc. and Tembec Inc., is advocating for the policy of "free, prior, and informed consent" when considering projects that could affect Aboriginal communities in a report released Monday.

"Free, prior, and informed consent," or FPIC, is a term used to describe the right of indigenous peoples to offer consent to or reject projects that could impact their resources or territories. The concept was embedded in the United Nations Declaration on the Rights of Indigenous Peoples in 2007 — every signatory is supposed to abide by it.

"The political reality is if you're not working with First Nations on the ground, if you don't have their consent, the likelihood of your project proceeding is negligible," Dave Porter, CEO of the BC First Nations Energy & Mining Council, told VICE News. "Canada will never realize its full economic potential unless it tackles the question of how to work with First Nations to obtain consent for resource development."

However, the fact that Aboriginal rights are constitutionally protected in Canada makes things a little more complicated. Canada did not vote in favor of adopting the UN declaration in 2007, and in 2010, accepted it only as an "non-legally binding aspirational document."

There's an ongoing debate about how the UN declaration should be interpreted to ensure it fits within the Canadian constitutional and legal framework.

"Hardly a day goes by when we don't read about the challenges surrounding things like pipelines and other types of resource development that are, in part, being held up by the inability of the various actors to work together to come to an agreement on what is a sensible, fair and reasonable approach," Karen Clarke-Whistler, the TD Bank Group's chief environment officer and a member of the council, told VICE News.

Chris McDonell, manager of Aboriginal and environmental relations for forest products company Tembec Inc., told VICE News that "from a risk management perspective, and with the opportunity to work more with communities whose interests are closely tied to projects that are undertaken, it makes sense to invest resources and collaborate using best practices and FPIC as a model."

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The players behind the public plea are notable in Canada, which has seen pitched battles over pipeline proposals and compensation packages that sometimes leave indigenous communities unsatisfied.

Most recently, a legal challenge to Enbridge Inc.'s Northern Gateway project launched by a number of indigenous communities along the pipeline's route has pushed its projected completion date from 2018 to as far back as 2021. Enbridge, which was given a conditional green light by the federal government, will also have to meet 209 conditions before construction can begin.

In a 2014 report, former UN Special Rapporteur on the Rights of indigenous Peoples, James Anaya, criticized the Canadian framework, writing that in cases where environmental assessments of projects have been required, the onus has been on indigenous governance bodies to produce research in a limited amount of time and to identify and find proof of their concerns for the government.

Those bodies then have to bring these concerns to a federally appointed review panel that may not have a grasp of Aboriginal rights or "operate under a very formal, adversarial process with little opportunity for real dialogue," he wrote.

Anaya has also called for FPIC to be integrated into Canada's development decisions.

"Canada should endeavor to put in place a policy framework for implementing the duty to consult that allows for indigenous peoples' genuine input and involvement at the earliest stages of project development," he wrote.

The law seems to already be heading in this direction. In 2014, the Supreme Court of Canada's Tsilqhot'in decision not only granted title to lands outside of a reserve, but also stated that the British Columbia First Nation would have final say on the economic benefits to be gained from the land and how it would be used.

The concept, which has already been adopted internationally, could prevent lengthy legal battles like the one Enbridge is up against.

McDonell says, "It is an approach that allows for collaboration and engagement, and we see the development of protocols, the understanding of the values and culture of First Nations communities being key components of working towards agreement."

Follow Tamara Khandakar on Twitter: @anima_tk