Businesses working outside large urban areas in British Columbia (and, in some cases, within them as well) often need good working relationships with neighbouring First Nations, whose aboriginal claims could be affected by provincial permitting decisions.
There are many reasons for good relations with First Nations, but the main one is to ensure that their rights are respected. If they aren’t, the permitting process can be frustrated or delayed.
Although the Province has the constitutional duty to consult First Nations before making a decision that could affect their claims, it is often to the advantage of businesses to take the initiative in this area, to effectively assist the Province in fulfilling that duty.
If there is no relationship with the First Nations to begin with, this is no easy task. Businesses are often surprised to discover how indifferent First Nations are to commercial interests. But to First Nations businesses come and go, as do proposals and other matters of urgent importance to non-native enterprises. Correspondence of all kinds piles up in hard-pressed First Nations offices. First Nations only have so much time and energy, and it can be hard to get their attention.
A lot of work needs to be done before the first contact occurs. Don’t leave the First Nations issue to the last. Seek experienced help at the outset. Know the First Nation you are dealing with. First Nations in British Columbia vary significantly; each has its own character, concerns and leadership. The last time you dealt with them may bear no relationship to the next. While there are enduring traits and issues in any First Nations community, much can change in a few years, including its leadership and its attitude towards land and resource development.
Businesses need to watch what they say at the outset, and to recognize that they are unlikely to get anything accomplished in a hurry. It is often at this opening stage that serious strategic mistakes are made.
Recognize that most First Nations, and their lawyers, are very adept at the consultation process. They will want to make everything they can of the opportunity. They will use every means available to them, especially the major one: time. First Nations rarely see any advantage in going fast.
Sometimes businesses are tempted to hurry the process along by saying, “Work with us and the benefits could be very big.” That may fire up expectations, yet slow down negotiations. The impatient businessperson, hoping to do a deal on the back of an envelope, fails to recognize that process for First Nations can be as important, if not more important, than outcome. First Nations move slowly, usually because the Band leadership does not want to go where their members did not expect or authorize them to go.
In addition, if Aboriginal objections to the project ever end up in litigation, process issues are likely to be the most important determinant of the outcome.
For most businesses, this is unfamiliar territory. When businesses consult with First Nations it is usually an extra-legal process – they are going outside the problem to solve the problem. Businesses are not the Province and cannot fulfil the Province’s duty to consult. But it is vitally important to a business that the Province does fulfil its duty. A business can assist the Province in one of two ways. It can reach an agreement with the First Nation to support the project, which the Province can rely on to help satisfy its own duty to consult. Or it can compile a record of good faith efforts to understand First Nations interests and concerns, which the Province can rely on to supplement its own consultation efforts and in overcoming First Nations objections to the project should it end up in litigation.
So, businesses should always be in touch with the Province. If a business is hoping to resolve the Province’s consultation obligation, it should let the Province know what it is doing and involve the Province wherever it can. All that will help the consultation process if no agreement is reached by the business.
Despite all of the differences that exist between First Nation communities, and all the changes that occur regularly within them, there are common features of any good relationship with First Nations. Spend time on the relationship; it should go beyond the business at hand. Be respectful. Put senior people at the table. Take an interest in the community. Follow up. Make it clear you enjoy the process, or you might not like the outcome.