Potential for First Nations to become part of projects dealing with climate change, carbon footprint
Indigenous involvement in building out Canada’s infrastructure may still be in its infancy, but it is fast-growing and will likely play a significant role in raising Canada’s productivity, reducing our carbon footprint and adapting to climate change, says Bennett Jones partner Sharon Singh.
More First Nations are becoming adept in negotiating their way around infrastructure projects that will help them economically, says Singh, who works out of Bennett Jones Vancouver office. “Indigenous communities definitely are far more advanced in equity participation than in the past, they clearly have in their minds what they want to do and what infrastructure projects they are interested in, and they have the governance in place to do it.”
At the same time, Singh says she sees a lot more willingness from governments, federal and provincial, to collaborate with First Nations on infrastructure projects. “There’s a lot more joint decision making, or at least collaboration, when it comes to policy decisions that affect the Nations,” she says, as well as broader issues that affect all of Canada but have a component of Indigenous impact as well.
There has been a “fundamental shift in our thinking in terms of what economic reconciliation looks like, and it really does go beyond the simple benefit agreements framework,” says Singh, who specializes in providing regulatory, governance, environmental law, Aboriginal law, and Indigenous and community relations advice to infrastructure, mining, energy, construction, technology, agribusiness, and transportation sectors.
Singh admits there “could be more seats at the table” for First Nations on infrastructure projects. “It’s not perfect from what I see,” she says. “But it definitely is not as fractured as it has been. There has been an evolution of how much support and how much recognition the Nations have received in policymaking with certain [provincial] governments and definitely the federal government.”
As well, given the focus on developing infrastructure that will not only help Canada’s productivity, First Nations are in a good position to become involved in projects that will help lower our carbon footprint and adapt to climate change.
Pointing to the development of legislation that would positively impact infrastructure projects and First Nations involvement, Singh says the pace of development has quickened. She notes the rigorous environmental assessment needed under federal Bill C-69 and similar legislation in B.C., which has been “revitalized and modernized.” She also references enabling legislation in B.C. that looks to implement the United Nations Declaration on the Rights of Indigenous Peoples and the federal government’s stated intention to do the same.
What these pieces of legislation do, she says, is “essentially increase the opportunities for Indigenous participation in the decision-making process.” They also provide enhanced recognition of Indigenous rights and interests and models for collaboration.
However, Singh also points out that there is a need to recognize the laws of First Nations have not been fully "braided" into Canadian common law. For starters, she says, there is no one Indigenous law, adding that in B.C. alone, there are more than 200 First Nations, many with their own unique law.
While there is jurisprudence in using Indigenous laws to inform common law, Singh says braiding the two together has not yet “been crystallized.”
As for the private sector, Singh says more of the “big players” have been early adopters of what governments are doing now in terms of engaging Indigenous peoples. “They’ve been forced to,” she says, “because they are the ones that have the risk of a project not proceeding, or a project being delayed.
“They’ve learned from mistakes and have adopted better practices,” she says, but adds that there still are examples of “bad practices” on the part of some parts of the private sector.
Singh also acknowledges that the private sector can do “all the right things” to engage a First Nation to accept or participate in a project, and “still there is no buy in.”
It doesn’t mean the company has done something wrong, she says. “In some instances, the company can do everything right, but the Nation simply does not want that project.”
Another factor is that some First Nations have a hereditary leadership system, along with band council governance under the Indian Act, Singh says. In those situations, both constituencies must be engaged.
Singh offers five pieces of advice for those wishing to embark on an infrastructure project that involves a First Nation: Do your due diligence; get to know the Nation; practice continuous engagement; understand the political climate; and realize that sometimes the project can’t be de-risked, and what are your criteria for moving away.
Finally, Singh says it’s important to understand that “for large infrastructure projects in Canada, it takes a long time” to get done.
For First Nations that want to develop infrastructure themselves, or in collaboration with a partner, the question comes to accessing needed capital. While there are government programs that can potentially provide capital — the Alberta Indigenous Opportunities Corporation or the Federal infrastructure bank, for example — one of the most significant factors will be the project’s viability.
“Is the project investible? If not, no matter how credit-worthy the Nation is, it won’t get the funds,” she says. “But if the project is right, typically the financing is available. And you see more investors, especially international investors, becoming savvy to the fact that the Nations are de risking themselves as Nations.”
Ultimately, Singh says, she is an optimist for collaboration with First Nations on infrastructure projects. “I think we will learn from our mistakes and hopefully correct them. And then make more mistakes. If that’s the definition of an optimist, that’s me.”
