Author, Strategist, Lawyer Bill Gallager, asks the question; “Will the Canadian Native legal Winning Streak Hit 200?” in court challenges on the Duty to Consult. It is certainly looking that way. Recent Supreme Court rulings have fundamentally changed the exploration and development process for many industries in Canada. The courts have found that Aboriginal communities must be consulted where their rights may be impacted. While there continues to be an ongoing discussion and debate about the “Duty to Consult and Accommodate” in legal circles as well as in business it only makes sense for a business to be proactive at the front end to ensure there are no hold ups when they start work. There have been too many instances of this happening recently proving it is more productive to deal with the issues before hand.
A recently published document entitled First Peoples¹ Indigenous Rights Risk Report “analyzes 370 oil, gas and mining sites on or near Indigenous land operated by 52 U.S.-based companies. The results are eye opening. 92% of these sites pose a medium to high risk to shareholders and investors. Yet only 5 companies have Indigenous Peoples policies to guide the company for how to positively engage and work with Indigenous Peoples. The impact of these risks on a companies’ bottom line are real and increasing.
John Ruggie, who developed the UN Guiding Principles on Business and Human Rights, calculated that it costs a mining company $20-30 million a week when a site is shutdown due to “non-technical” reasons and that the time it takes to bring oil projects online has “doubled over the course of the previous decade, creating substantial cost inflation.”1 In addition, analysis conducted by Environmental Resources Management of 190 oil and gas projects found that 73 percent of delays were due to “above-ground” or non-technical risks, including stakeholder resistance. This was recently proven again in October 2013, when over 40 members of the Elsipogtog and Mi’kmaq First Nations were arrested for blockading access to Southwestern Energy’s seismic testing equipment in Canada, which the company claims is costing them $60,000 a day.”
NG Associates believe that developing a long-term positive relationship with an impacted Aboriginal community is a better outcome than merely complying with legislation to get the job done. Developing a positive working relationship with Aboriginal groups will open up many new opportunities for cooperation and partnerships and ensure the success of the project and the community. NG Associates believe that we are in a unique position to help you bridge the gap and lead the way from your first introductions to developing a long-term mutually beneficial relationship between the Aboriginal community and Industry.
The Aboriginal Business Advantage:
The objective of the Contracting Policy of the Government of Canada is to acquire goods and services and to carry out construction in a manner that enhances access, competition and fairness and results in best value or, if appropriate, the optimal balance of overall benefits to the Crown and the Canadian people.
In support of its objective, the Contracting Policy states that government contracting shall be conducted in a manner that will, among other things, support long-term industrial and regional development and other appropriate national objectives, including aboriginal economic development.
Procurement Strategy for Aboriginal Business (PSAB) works to help Aboriginal firms do more contracting with all federal government departments and agencies and assists Aboriginal businesses gain access to the overall procurement process. The PSAB, while led by Aboriginal Affairs and Northern Development Canada (AANDC), is a Government of Canada initiative. All federal government departments and agencies are encouraged to participate in this initiative.
Aboriginal Supplier Incentive – CIDA has introduced an Aboriginal supplier incentive component in its Request for Proposals (RFP) documents which consists in providing additional points (up to a maximum of 50 points which represents 5% of 1,000 total evaluation points) when Aboriginal direct hiring, subcontracting or supply activities are proposed.
These points are to be:
- applied to all RFP for projects financed by CIDA’s aid budget;
- attributed after technical and financial proposals are evaluated; and awarded on pro rata of the Aboriginal component in relation to the value of the Consultant’s proposal; the total value includes fees and expenses.
While it is our intention to strive for a 75% First Nations component we will always adhere to Government of Canada regulations of at least 33% First Nations required content on each and every contract that provides First Nations IRB Credits.
Picture courtesy of Marcus Gosse