Opinion: Study shows Duty to Consult needs a national strategy
- Anthea Darychuk and Dr. Karen Travers | September 20, 2016
Across the country, many Aboriginal communities are leading the sustainable development of natural resources on their territories. According to the Canadian Council for Aboriginal Business (CCAB), 40% of all Aboriginal businesses in Canada (on and off-reserve) are involved in the extractive industry. Ironically, at a time when historic wrongs are finally being addressed on a national level, one of the most regulated sectors in Canada faces tremendous uncertainty and lacks guidance to uniformly engage with Aboriginal peoples on development issues.
As the courts increasingly move to recognize title rights and expand the parameters of consultation, Indigenous peoples are in the best position to develop and outline acceptable standards for engagement and development. A recent report by the Fraser Institute estimates that the duty to consult was triggered 100,000 times in the last year, suggesting that this issue will continue to affect long-term business and economic development across our country. While the duty to consult rests with Crown, procedural aspects can be legally downloaded to proponent mining companies who historically fulfill their consultation responsibilities through the use of Impact and Benefit Agreements (IBAs) negotiated with Chiefs and Councils to provide community benefits such as employment, training, and business development. Though most provinces have written policies or guidelines to help industry navigate the process, the Fraser Institute study shows that they are inadequate and like the agreements that result, they vary considerably.
The current system of jurisdictional uncertainty, and complex laws and policies are seemingly set up to create and maintain a state of disorder that favors certain interests over others. As lead researchers on a national study investigating the involvement of Aboriginal suppliers in the Canadian mining sector, the Aboriginal suppliers and mining company representatives we interviewed reported that they were confused and frustrated with the ever-changing, overlapping, and vague consultation requirements. Clear guidelines would not only allow mining companies to fulfill their social duties but create a reliable, consistent environment for Aboriginal community capacity and business development growth.
Mining companies in Canada increasingly understand that Aboriginal businesses have a competitive advantage in the resource industry. Aboriginal communities are often located near mineral deposits and mining operations so their businesses are reliable and able to respond flexibly to the fickle nature of mining operations. We heard dozens of examples of reductions in staff turnover and mistakes that were avoided because Aboriginal contractors knew how to work in and accommodate harsh conditions and understood local variables in the land and environment in ways that southern engineers did not.
Despite this recognition of their added value, the Aboriginal business community faces challenges. In many parts of the country, industry consultation happens in an ad hoc manner on the basis of a combination of good faith, self-interest, and risk management. Consultation uncertainty can permeate the entire company and often results in inadequate training for procurement officers, many of whom felt they lacked the skills they needed to successfully manage consultation, engagement and supplier business development. Procurement staff often have traditional supply chain management backgrounds, and are new to building long-term partnerships with Aboriginal communities and businesses. The majority of procurement staff we interviewed were at their current job for less than 5 years and spoke about the challenges they faced coordinating engagement efforts and community outreach, particularly if they had to meet IBA targets. Aboriginal suppliers and economic development corporation officers also said that a lack of forecasting information hampered their ability to hire staff, budget, train, or develop businesses that could meet the needs of the mine.
Despite these challenges, mining companies and Aboriginal businesses are finding creative and effective ways to collaborate and build partnerships. Organizing IBA implementation committees and publishing business lists of Aboriginal suppliers are two examples of the many ways companies and suppliers make their relationships work. While our research uncovered several integrated training and business development initiatives, all of them were led by individuals in the field without corporate or head office guidance and in the absence of any coherent industry-community-government visions or plans.
Despite the best of intentions, the results from our research suggest that in the absence of concrete policies and procedures, individuals in supply chain, sustainability, human resources, engagement and procurement management, will continue to interpret DTC requirements and follow vague government policies in an ad hoc, unsystematic way. Now more than ever, it is incumbent upon our federal and provincial governments to set the example and engage First Nations to develop a national consultation strategy that addresses current inequities and bridges the gaps between the expectations of Indigenous peoples and those of the national resources sector so that both benefit from sustainable resource development.
~ Anthea Darychuk, Research Manager, Mining Shared Value venture of Engineers Without Borders Canada; and Dr. Karen Travers, Research Analyst, Canadian Council for Aboriginal Business.
The Mining Shared Value (MSV) venture of Engineers Without Borders Canada has collaborated with the Canadian Council of Aboriginal Business (CCAB) to conduct a national research project looking at the economic and social impacts of procurement for Aboriginal suppliers in the Canadian mining industry. Through field visits and interviews with over seventy-five key informants across industry and private Aboriginal businesses and Aboriginal economic development officers, this research aimed to further develop the business case for procuring from Aboriginal suppliers, as well as identify the best and evolving practices for further Aboriginal engagement in one of Canada's largest industries. Study results can inform corporate and community decision-making and support increased partnership development.