Resolving disputes with Indigenous partners

Ryan Lax (00:12): Hi everyone. Welcome back to our video series on navigating project-related disputes. This session addresses matters related to Indigenous Peoples and rights in connection with project development. Construction projects may be developed by Indigenous proponents, non-Indigenous proponents, or both in partnership, and even in cases where Indigenous Peoples may be leading a project, there may be work with other Indigenous communities that are not leading the project.

In the current era of reconciliation, meaningful Indigenous engagement and participation has to be considered in a variety of different circumstances.

Lauren Nickerson (00:47): We approach the topic of Indigenous interests and project development as an opportunity. Most major project development in Canada may affect Indigenous Peoples’ rights and interests in some way.

Ryan Lax (00:58): And in that context, there are several parallel conversations or objectives that may need to be considered at the same time. Canadian law recognizes a duty to consult and accommodate where a project may impact Indigenous rights and the legal landscape in Canada is evolving. Both the federal government and British Columbia are jurisdictions that have committed to aligning their laws with the United Nations Declaration on the Rights of Indigenous Peoples, or “UNDRIP”, and that includes principles of free, prior and informed consent.

There may also be parallel discussion about economic partnership or other forms of benefit sharing, and all of this is going to take place in the context of a conversation about reconciliation. The Truth and Reconciliation Commission's Call to Action 92 expressly addresses business and reconciliation.

Lauren Nickerson (01:47): And these parallel considerations can set up a complex dynamic to navigate, giving rise to some tensions. As one example, project-related permitting is usually tied to the discharge of the duty to consult. This can affect the overall project schedule. The law is that both parties have a duty to engage in consultation in a timely and good faith manner, but in practice, and especially if the proponent has not fostered good relationships with potentially affected communities, the consultation process can result in delay as parties engage in difficult negotiations over project-related benefits.

This heightens the importance of establishing and maintaining good relationships with Indigenous communities throughout the lifecycle of a project.

Ryan Lax (02:34): Similarly, if material changes or unanticipated impacts arise after the initial permitting process, it may trigger an additional consultation obligation, or obligations under any agreement with the affected Indigenous community. This may be years after the initial permitting process and development of the project. The individuals who were present for the initial consultations or negotiations may no longer be available, and divergent understandings may cause disputes.

Lauren Nickerson (03:00): Add into this that expectations around major project developments in Canada have shifted in recent years. The expectation that many Indigenous communities now hold is that their consent will be sought, and that consent will be arrived at through some form of equity participation in the project or other economic partnership.

Ryan Lax (03:18): So Lauren, how can we mitigate these risks in project planning?

Lauren Nickerson (03:22): Well, there's no magic formula. What's required will vary by circumstance, but all of this typically goes more smoothly where relationships with potentially affected Indigenous communities are prioritized from the outset, and this means meaningful relationship building and consultation on project-related impacts from the earliest possible stage.

Ryan Lax (03:42): That's right, the aim of this process should be meaningful two-way dialogue to develop measures that mitigate impacts with the aim of achieving consent to the project. Mitigation measures may take many forms, including changes to project plans, binding conditions on project development, studies to better understand traditional land uses, and Indigenous involvement in emergency response, and that's just to name a few.

It's also important to give careful consideration to the economic benefits that flow from the project. This may be in the form of an impact benefit agreement, procurement, training opportunities or employment opportunities. This may also take the form of revenue sharing or equity partnership with one or more affected Indigenous communities. All of this may further reconciliation and create the most durable, long-term support for the project.

Lauren Nickerson (04:34): But unfortunately, despite best intentions on all sides, these issues can still give rise to disputes. And when that happens, it's important to prioritize the relationship while managing the dispute.

Ryan Lax (04:45): Usually, when a dispute arises, something has occurred where the relationship has soured, key personnel have changed over or unanticipated impacts have arisen. And in these circumstances, it can still be useful to consider whether economic partnership agreements, if not already entered into, may be concluded in order to better align incentives among the parties and settle the dispute. It's never too late for this, and we have settled disputes in these circumstances on the eve of hearings.

Lauren Nickerson (05:12): And at the same time, you do have to prepare your case for litigation. It will usually be important to have maintained careful records of the communications with the affected parties, including on issues raised, impacts discussed, measures implemented to mitigate any effects, and the meaningful good faith process that was followed. Any final thoughts, Ryan?

Ryan Lax (05:31): Well, if a dispute does proceed, the tone of litigation is also key. Keep in mind that litigation is likely taking place in the context of a long-term relationship that is going to continue and may need to be mended down the road. Work with opposing counsel to plan a fair process. It's important to avoid inflammatory rhetoric or unnecessary accusations, and the focus should really be on the facts and assisting the decision-maker in resolving the dispute.

Thanks for joining us, everyone.