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State of Industry - First Nations Relations 2014 >>

The State of Industry-First Nations Relations in BC – Part I

Introduction

Over the past thirty years, and accelerating over the last decade or so, industry in British Columbia has increasingly engaged directly with First Nations to build the conditions for investment certainty in resource project development. The business case for doing so is clear – Section 35 aboriginal rights and title have proven challenging to define, and the Crown, for a variety of reasons,[1] has been unable to comprehensively meet all of its consultation and accommodation obligations to First Nations. Nor should government necessarily have to shoulder all of the work related to post-colonial economic engagement with First Nations.

As right and title holders on the land base, relations between First Nations and industry can stand on their own accord as a foundation for successful economic development.  Moreover, when this relationship-building is done effectively, all parties stand to benefit. First Nations can gain from productive economic exchanges with the private sector – forging the critical economic connections that lead to own-source revenue, capacity development and jobs, along with stronger linkages to activities that impact (and support) First Nations’ rights and title interests.  Industry, for its part, benefits as project certainty is enhanced through partnerships and as proponents gain access to First Nations’ local knowledge, workforce and business ventures.

As a result of this evolving relationship between First Nations and industry, through both formal and informal means that have been validated by legal precedents,[2] various aspects of First Nation consultation have been delegated by government to companies seeking to undertake natural resource and infrastructure development in BC (and elsewhere).[3] During roughly this same timeframe, resource industries have also perceived a growing need to secure a community based ‘social licence’ to operate, which typically involves nurturing both broadly-based and specific local and regional support for resource development activities.

In combination with greater legal clarity on the nature of aboriginal rights and title, these twin trends of delegated consultation (to business) and obtaining community based ‘social licence’ have resulted in increasingly comprehensive forms of engagement between industry and First Nations.  Nowhere has this process become more central to natural resource development than in British Columbia. With over 200 First Nations (approximately one-third of the total in Canada), few treaties in place, and significant natural resource development opportunities, British Columbia has been at the forefront of cultivating these new economic relationships.

One welcome consequence of greater economic engagement has been hundreds of agreements between First Nations, government and resource developers. These agreements[1] have been discussed, negotiated, signed and implemented across a wide range of activities – forestry, mining, energy projects, aquaculture, resort/tourism/land development – that have both real and perceived impacts on aboriginal rights and title interests.[2]  The results of this process are an array of industry-First Nation agreements that can both complement government consultation and accommodation requirements and stand on their own as a part of successful economic development in the BC context.

In practice, First Nations consultation processes and agreement frameworks are well advanced in British Columbia.  A growing body of both literature and practitioner activity now exists to guide and shape relationship development.[3] 

However, much work remains to be done to further the goal of economic reconciliation in British Columbia.

In this paper – the first of a 3 part series on First Nations economic development in BC – we explore the state of First Nations–industry relations from the perspective of knowledgeable industry practitioners.  Drawing on a first-ever survey of the Business Council’s Aboriginal Affairs Committee, we summarize the views of business leaders working both day-to-day and in corporate headquarters on economic relationships with First Nations in BC.

Download full report here

Read BCBC's latest opinion editorials on this topic posted in the Vancouver Sun here



[1] For a summary of these agreements, see the following Business Council paper on the subject: http://www.bcbc.com/content/745/PPv20n1.pdf.

[2] See part II of this series. The estimate is also based on data from the Department of Indian Affairs and Northern Development.

[3] Examples include:  the IBA Community Toolkit – www.ibacommunitytoolkit.ca/; “Benefit Sharing Agreements in British Columbia: A Guide for First Nations, Businesses and Government” Woodward & Company. “Negotiating and Structuring Business Transactions with First Nations. – Drafting Impact Benefit Agreements” Paul C. Wilson and Charlene Hiller, Fasken Martineau DuMoulin LLP. Continuing Legal Education (CLE) Society of BC, November 2011.



[1] These reasons include a combination of both practical factors – in many instances, it simply makes more sense for the company to undertake the consultation; and legal/capacity factors – in some cases the Crown has not had sufficient capacity or a mandate to engage comprehensively. Overall, the practical factors tend to be predominant in BC; generally the provincial Crown has both the mandate and the toolkit to engage comprehensively.

[2] The courts have repeatedly upheld the Crown’s ability to delegate procedural aspects of consultation to industry.

[3] This engagement is now well established; see the various Proponent Guides on the Ministry of Aboriginal Affairs and Reconciliation website: http://www2.gov.bc.ca/gov/topic.page?id=8CF98F756A984198AFD80AEA0E472F05&title=Consulting%20with%20First%20Nations.