Five Calls to Action: Indigenous Partnership in Regulatory Process and Post-COVID-19 Economy

In the clamour for economic recovery post-COVID-19, we at SVS are concerned that Indigenous voices may not get the air-time they deserve. We are concerned that progress on Indigenous rights may be rolled back in the name of wider economic recovery when this is exactly the moment when the rights and interests of Indigenous Nations, and the interests of Canada, can strongly align for the health, security and prosperity of us all.  

The five calls to action in this open letter to government and regulators represent a synthesis of numerous conversations we have had with Indigenous leadership, Indigenous business leaders and consultation staff from across Canada. As an environmental and community development consulting firm dedicated to engaging regulators, industry and government on behalf of our Indigenous clients, we want to make sure the concerns we are hearing are addressed. Our intent with this letter is to do our part in augmenting the conversation in which Indigenous Nations are already fully engaged.

Five Calls to Action Summarized:

1. Uphold the Duty to Consult
2. Create better, more inclusive projects

3. Recognize and honour the diversity of Indigenous Nations

4. Support Indigenous economies during the COVID-19 pandemic
5. Empower Indigenous Guardianship

Does this letter strike a chord with you? As usual, we want to hear from you, our clients. We’ve done our best to infuse it with all we have heard from you, but we humbly acknowledge we may have missed something. It’s our intent to share the letter widely with governments and regulators. Please feel free to use any of its content in your own campaigns and communications.

April 28, 2020

An Open Letter to Governments and Regulators:

Five Calls to Action to Facilitate Indigenous Partnership in Environmental Regulatory Processes and the post-COVID-19 Economic Recovery

To whom it may concern,

Many Indigenous Nations have found cautious optimism in the federal government’s April 17^thannouncement to maintain this government’s commitments towards advancing reconciliation with Indigenous peoples, and protecting the environment. However, at the same time recent announcements by some provincial governments, in response to calls by industry for regulatory flexibility, indicate ongoing prioritization of resource extraction over the health and safety of Indigenous peoples. While these are difficult economic circumstances for Canadians across the country, it is not a time to walk back progress made on reconciliation and deliberately risk the lives of vulnerable populations. 

The current situation presents governments, regulators, proponents and Indigenous Nations with an opportunity to chart a better way forward. An opportunity to affirm mutual respect, broaden discussions about unlocking the full economic potential of Indigenous Nations and set the stage for increased partnership in the oversight of projects that impact ancestral territories. The opportunity to recognize indigenous peoples as partners in, and not barriers to, economic development.

Current Limitations to Meaningful Participation in Environmental Assessment and Regulatory Processes

At present, Indigenous Nations with whom we work have diverted considerable capacity and resources away from regular interactions with governments, regulators and proponents towards activities meant to ensure the health and safety of their citizens. In many cases, lands and consultation offices have been closed or are running at a much-reduced capacity due to mandatory physical distancing measures. Staff normally designated to managing participation in regulatory processes have either been temporarily reassigned or are working remotely, often with limited internet connectivity.

Protecting Elders a Priority

Access to decision-makers within Indigenous governments, and the elders whose voices are critical in decision-making, is limited because the primary focus is responding to the pandemic, and keeping people – especially elders – safe and healthy. Engaging with Elders and knowledge keepers to inform traditional land use studies and participation in hearings has been largely suspended. 

Spring is also a time when many Indigenous citizens are out on the land, engaging in traditional activities essential for both subsistence and emotional well-being, and with COVID-19, many community members are using the spring hunt as an opportunity to maximize social-distancing and connect with their families, while improving long-term food-security. In many areas across the country, there is the added concern, preparation and immediate response related to seasonal flooding and wildfires.

This is exactly the wrong time to dictate to Indigenous Nations that they "do their part" to get projects built.  Given the difficult circumstances Indigenous Nations find themselves in and the emerging public dialogue to restart the economy, this could be interpreted as divisive language that does not advance reconciliation or better projects. Worse, it could result in costly delays, conflict, and litigation.

Five Calls to Action:

Given the current realities of life under quarantine and the need to stabilize a faltering economy, we call on the Government of Canada, the provinces and their regulatory agencies to carefully consider and implement the following calls to action during deliberations about regulatory flexibility to natural resource development.

These five calls to action represent a synthesis of numerous conversations with elected Indigenous leadership, Indigenous business leaders and consultation staff from across Canada. As an environmental and community development consulting firm dedicated to proactively engaging regulators, industry and government on behalf of our Indigenous clients, we want to ensure their concerns are meaningfully addressed in these uncertain times. Our intent with this letter is to do our part in augmenting the conversations in which Indigenous Nations are already fully engaged.

1. Uphold the Duty to Consult: 

   The Crown must re-affirm and abide its duty to consult, and where appropriate, accommodate Indigenous Nations when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights. We recommend that the federal government and the provinces adopt, as a baseline, similar measures to those contained in the government of British Columbia’s interim-guidance for decision-makers who are responsible for consulting Indigenous Nations and organizations during the COVID-19 pandemic.

https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/indigenous-people/aboriginal-peoples-documents/bulletin_fn_consultations_covid-19.pdf

• Suspend or postpone all in-person consultation meetings until such a time that health authorities are no longer recommending the practice of social distancing.
• Engage individual impacted Indigenous Nations to determine their current circumstances and adjust and/or defer consultation timelines accordingly or assess in collaboration with representatives of Indigenous Nations whether consultation can be coordinated or simplified with any existing arrangements.
• Expect delayed responses and be prepared to extend timelines or defer decisions where appropriate. Agencies should critically assess review processes and consider continuing based on priorities and time sensitivities.
• Critically review any new consultation processes and consider initiating consultation processes base on priority and time sensitivities. This approach may mean delaying consultation activities for the time being.
• As statutory decision-makers, consider whether the Crown has acted honourably in meeting its duty to consult and accommodate, particularly in light of an absence of responses from Indigenous Nations in the current pandemic situation.

2. Recognize and honour the diversity of Indigenous Nations:

   Governments and regulators must must re-dedicate themselves to a distinctions-based approach that recognizes First Nations, the Metis Nation, and Inuit as consisting of distinct, rights-bearing communities and that all engagement, consultation and potential accommodation related to on-going and future projects must reflect the unique interests, priorities and circumstances of each People.

3. Create better, more inclusive projects:

   Governments, regulators and proponents, working in collaboration with Indigenous Nations, must meaningfully advance a mutually supportive climate for economic partnership. This should include the implementation and enforcement of project-related employment and procurement targets, economic benefit agreements and in certain cases, equity partnerships.

4. Support Indigenous economies during the COVID-19 pandemic:

   Indigenous businesses need to be included in recent federal legislation and have long-standing barriers to their success removed: See J.P. Gladu’s April 24, 2020 post on Shared Value Solutions’ blog:   

https://info.sharedvaluesolutions.com/blog/supporting-first-nation-economies-during-covid-19

• The Emergency Wage Subsidy needs to include Indigenous economic development corporations.
• Loans to Indigenous businesses must address the chronic barrier to accessing sufficient capital.
• Indigenous businesses have much to offer during this crisis – and governments should be looking to them as part of a minimum 5% procurement commitment – this is especially the case when federal dollars are transferred to the provinces, in keeping with the minimum 5% procurement target in every federal minister’s mandate.
• Indigenous Businesses are well positioned for orphan well clean-up efforts and must be included in Alberta Orphan Well Association procurement policies – again lining up with the minimum 5% procurement target in every federal minister’s mandate .

5. Empower Indigenous Guardianship:

   Going forward, governments, regulators and proponents must commit to increasing Indigenous capacity to monitor and protect their traditional territories, including increasing participation in joint-oversight activities with regulators. Better, more inclusive projects can be advanced if they are founded on the recognition of Indigenous Nations’ inherent right to self-determination and self-government.
   • Support Indigenous Advisory and Monitoring Committees or similar types of project-specific environmental oversight and ongoing consultation forums between industry, government, and affected, rights-holding Indigenous nations.
   • Provide continued funding and assistance for existing Indigenous Guardians capacity development programs.
   • Include conditions of approval that require engagement and involvement of Indigenous cultural and environmental monitors through the full lifecycle of projects.
   • Provide measures to assist in the development of capacity for, and direct involvement of, Indigenous environmental emergency response personnel to address spills, accidents, and malfunctions.

In closing, many of these calls to action can be achieved using existing examples of innovative partnerships and capacity building approaches, as well as through the reallocation of some funding currently committed to projects.  They will require a re-dedication to principles of co-development so that avenues of litigation can be avoided.  During this time of crisis, we are all in this together and need to work constructively to advance mutual prosperity and environmental and cultural well-being. We respectfully ask that these calls to action inform government decision-making processes for the good of all Nations.

Sincerely,

Scott Mackay, CEO

Shared Value Solutions

About Us: Shared Value Solutions

We are a Canadian B Corp, and we assist Indigenous communities with support throughout regulatory processes surrounding major development projects like mines, hydroelectric facilities, transmission lines, highway expansions, oil and gas pipelines, natural resource transport applications and nuclear power. 

We have deep context and experience behind the recommendations we provide, having worked for our clients on almost every major project in Canada over the last 10 years. For us, it’s all about building long-term relationships with our clients. We want to get to know you and what you want to do so we can help you move your plans forward. 

• Reviews of Environmental Assessments and Environmental Impact Statements

• Indigenous Land Use Studies, Indigenous Knowledge Studies, Indigenous Ecological Knowledge Studies, Community Cultural Values Mapping

• Strategic Regulatory and Environmental Assessment Process Support

• First Nation Environmental Management Planning

• First Nation Land Code communities
• Indigenous Guardian programs
• Impact Benefit Agreements: technical and regulatory support for negotiations
• Indigenous Jurisdiction initiatives: joint management agreements and co-management agreements
• Community-based Indigenous environmental monitoring
• Indigenous Land Use Planning