Canada - Study touts free, informed consent as key to resource development


By Bruce Cheadle, The Canadian Press –

Date of publication: 
20 September 2015

The report, “Understanding Successful Approaches to Free, Prior, and Informed Consent in Canada. Part I.” can be downloaded here –


Can we talk? Study touts free, informed consent as key to resource development

OTTAWA – Resource companies, financial institutions, First Nations and conservation groups have issued a new report that stresses the critical importance of getting the green light from indigenous communities before development can go ahead.

The study by the Boreal Leadership Council lays out principles for establishing free, prior and informed consent to resource projects, which it says is not only a legal imperative in Canada but also benefits both the affected communities and the companies involved.

Robert Walker of NEI Investments, who is a member of the Boreal Leadership Council, says full engagement with First Nations before a project begins can give resource companies certainty and helps assure long-term benefits for First Nations.

The 23-page report notes that free, prior and informed consent cannot be obtained by force, coercion, intimidation, manipulation or pressure from the government or company seeking project approval. It also says consent cannot exist when a community does not have an option to meaningfully say no.

“Free, prior, and informed consent — the right of indigenous peoples to offer or withhold consent to development that may have an impact on their territories or resources — is the key to development, not a barrier,” Walker said in a release accompanying the report’s release.

The report arrives in the middle of a federal election campaign in which opposition parties have accused Stephen Harper’s pro-development Conservatives of actually hampering oil and gas infrastructure projects in their over-eagerness to boost the resource sector.

“That sector needs a government that is on its side. We want to see this sector grow and develop,” said Harper last week during a leaders’ debate on the economy in Calgary.

“The public is not onside,” shot back NDP Leader Tom Mulcair. “He thought he was helping the energy companies by destroying that (environmental) legislation. He’s actually made their lives tougher.”

The Boreal Leadership Council study doesn’t wade into such partisan territory, but nonetheless suggests more could be done by government to smooth the relationship between resource developers and indigenous communities.

It notes that most Canadian environmental assessment and regulatory bodies “are not empowered to determine whether consent has been granted or whether consultation has been adequate.”

And it cites at length from last year’s “Report of the Special (UN) Rapporteur on the Rights of Indigenous Peoples,” which criticized the Canadian government for claiming the duty to consult First Nations could be met through existing processes and regulatory bodies.

The message, coming from a group that includes financiers and resource industry representatives, may have fresh impact, but it’s not new.

Doug Eyford, appointed by Harper as his special envoy on West Coast energy issues, reported in 2013 that engagement with aboriginal groups was critical.

“It’s never too late to engage and do so in a process of good faith negotiations,” Eyford said in December 2013.

Whether the message got through is another matter.

Documents obtained by The Canadian Press show the Harper government used a two-year, $4.5 million “Outreach Fund” to pay for projects in 2014 that included addressing “knowledge gaps among British Columbia First Nations communities related to energy and energy infrastructure for the purpose of increasing energy literacy.”

The Natural Resources Canada documents make only passing mention of community engagement.

“Projects (under the Outreach Fund) are measured against the objectives of: protecting access to markets for Canadian energy and mining sectors; targeting key stakeholders; promoting Canada as an environmentally responsible developer of natural resources; and addressing persistent misinformation …. A number of projects relate to First Nations West Coast market access and meet the criteria for the program,” said the memorandum to the minister, dated June 4, 2014.

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Resources firms endorse call for aboriginal veto rights to projects oil-sands-dump-truck

Shawn McCarthy, The Globe and Mail –

21 September 2015

Two of Canada’s biggest resources companies have endorsed a call for governments and industry to clearly assert the right of aboriginal communities to veto major projects that negatively affect their traditional territories.

Suncor Energy Inc. and Tembec Inc. are members of the Boreal Leadership Council that is releasing a report Monday calling for the adoption of the principle of “free, prior and informed consent” when industry is working with indigenous populations. The council is composed of businesses – including Toronto Dominion Bank – environmental groups and First Nations that work together on northern issues.

Aboriginal communities have frequently reaped benefits in agreements with resources companies over development projects, but often complain they are not treated as full partners and have little real power over the fate of projects. In recent years, Canadian courts have made clear that these communities need to be consulted and their concerns accommodated, and that where they have clear title to land, their consent must be given.

But the Harper government has not accepted the standard – contained in the United Nations Declaration on the Rights of Indigenous Peoples – that would acknowledge the right of aboriginal communities to provide their informed consent prior to a project being approved. Several First Nations have launched legal challenges to specific projects, including the government’s conditional approval of Enbridge Inc.‘s Northern Gateway project.

While some industry executives worry about arming aboriginal leaders with veto power, the boreal council concluded that adopting such a standard of consent would facilitate partnerships rather than serve as a barrier to development. However, all levels of government, industry and the aboriginal leaders themselves must ensure the communities have the capacity to engage as full partners, it said.

“We are supporting free, prior and informed consent as a way to address many of the resource challenges,” council member Robert Walker – who is vice-president at NEI Investments ethical funds – said in an interview. “It’s not just an issue of access to resources and getting business done; it’s also for us a social justice issue. That certainly is the position of the [boreal council].”

Montreal-based forestry company Tembec has concluded a number of forest management agreements with Cree, Algonquin and Ojibwa communities in Ontario and Quebec, but company manager Chris McDonnell said more work needs to be done to ensure the concept of free, prior and informed consent is fully realized.

“As we’re engaging with them in the development of forest management plans … we’re able to take a more flexible approach to adapting our operations to their interest and use of the land,” he said. However, bands may reject a forestry plan that involves a site of special significance, and the company must be prepared to accept that decision.

While Suncor is part of the council and endorsed its report, its representative on the council, Peter MacConnachie, dodged a specific question on the UN standard of consent.

“We support the research the Boreal Leadership Council is doing and welcome the opportunity to learn more about what [free, prior and informed consent] means to aboriginal communities,” he said in an e-mailed statement. “What’s important to Suncor is that we continue to have strong, mutually beneficial long-term relationships with First Nations.”

Alberta’s New Democratic Party government is promising to adopt the standard as it looks to repair relations with the province’s aboriginal communities and ensure they benefit from resource development. Premier Rachel Notley sent a letter to ministers in the summer, urging them to find ways to incorporate the UN Declaration on the Rights of Indigenous Peoples into the work of their ministries.

“I expect the most challenging part of the discussion will be related to land and resources,” she wrote.