Creating Indigenous Business Relationships in Canada

Aboriginal rights (including Treaty Rights) may apply to Aboriginal titles in major areas of land in Canada (First Nations, Inuit, and Métis) Indigenous populations. Such rights must be taken into account when a corporation produces or funds a natural resource, a mining, an energy or a land project, or any other project requiring public licencing or approval from government. The government is responsible for engaging and adapting indigenous peoples, as necessary, so that any effect on Treaties or the title or aboriginal rights of the proposed project is prevented or mitigated. Some of these obligations may be delegated to industry by the government and often, in practise. To order to push forward any significant project or transaction to Canada and to ensure continuing sustainability of current facilities and operations, adequate dedication to indigenous peoples is therefore essential. Often, success and failure can be the difference between the right engagement strategy (and its diligent application).

The landscape has changed dramatically in recent years as the case law and government policy have grown significantly.

In conformity with Section 35 of the Canadian Constitution Act 1982 (Section 35), the Aboriginal and treaty rights of indigenous peoples in Canada are protected. The remaining indigenous land in Canada is covered what are aboriginal laws based on under section 35, the rights of indigenous people to use land for particular traditional purposes (for example, hunting , fishing or trapping) and the privileges bestowed upon indigenous peoples under ancient, current treaties (Section 35, "Freedom").

Considerations for Doing Aboriginal Business in Canada

The Federal and Provincial Governments ("Crown") have the constitutional obligation to consult indigenous peoples if the Crown contemplates behaviour that may have adverse effects on their Section 35 rights in order to reconcile section 35 with the sovereignty of the crown.

Examples of Crown conduct, including decisions to grant surface tenures over government lands, issuing new permits or amending existing permits (such as certificates of environmental or impact assessment), decisions on permit transfer approvals (e.g. in the course of an acquisition) etc. can trigger the obligation to consult.

This level is small because the Crown has actual or substantive knowledge of the possible nature of aboriginal rights or title and recognises actions, which may adversely impact certain rights or titles. The Crown 's obligation to consult is small. The obligation exists before proof of rights or title and even with very little evidence of possible harm.

Once triggered the content of the duty varies from case to case (i.e. what the Crown has to do in order to fulfil it). Only the information concerning the project may be needed at the lower end of the spectrum. At the high end of the spectrum (where there is a strong case supporting the existence of the Aboriginal rights or title and the potential for an adverse effect is serious), the duty to consult may necessitate concrete measures that mitigate or compensate for the adverse impacts, referred to as accommodation and possibly including alterations to the project and/or revenue sharing on the part of the Crown).

Aboriginal Business Negotiations

The Crown may delegate procedural aspects of consultation to companies and other proponents, but there is no requirement to obtain consent on lands where Aboriginal title has not yet been established through a judicial declaration or a treaty. Recent changes are moving toward regulatory structures that give more weight to consent, and many companies already seek to obtain consent with respect to projects and operations that affect lands subject to Aboriginal rights and title claims. In some jurisdictions, primarily in northern Canada, proponents of major development projects are required to negotiate an impact benefit agreement with potentially affected Indigenous peoples under concluded land claims agreements or legislation governing resource development. Federal and provincial permitting authorities are moving toward giving increasing weight to consent (but stopping short of requiring it or close to it) and at least the requirement to seek to obtain consent where Aboriginal title might be affected.

Regardless of the Crown’s approach, by consulting with Indigenous peoples and attempting to address as many of https://en.search.wordpress.com/?src=organic&q=indigenous lawyer their concerns as possible, proponents have been able to avoid or limit potential opposition to projects and operations and the negative consequences that can result from a lack of communication and engagement with Indigenous peoples, such as challenges to a government decision to issue a permit or licence based on inadequate consultation.

As a result of this evolving legal framework, Indigenous participation in transactions and projects is rapidly rising across all sectors of the Canadian economy. Proponents and operators are actively seeking agreements with Indigenous peoples to secure their consent and support for new projects and existing facilities that could potentially affect Section 35 Rights.

At the same time, Indigenous peoples are pursuing business alliances with the private sector to address infrastructure deficits within their communities, generate wealth, and create economic opportunities for future generations. This is resulting in Indigenous peoples taking more active roles in relation to development in their territories – from simply being consulted or employed on projects to being equity participants in operating businesses and industrial facilities. For equity participants, there has been an evolution from small equity stakes, or full ownership of small projects, to sophisticated partnerships or other commercial arrangements. It is anticipated that this trend will continue to grow in the coming years.