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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Bruce Cheadle, The Canadian Press