Responsible business and the law in Canada: Industry and Indigenous peoples

In 2018, society is looking to the business world to take an increasingly active role in responsible leadership. In Canada, the relationship between business and Indigenous peoples as it relates to responsible business is particularly relevant.

On July 19, the Peter P. Dhillon Centre for Business Ethics at the UBC Sauder School of Business hosted its Second Annual Academic-Practitioner Roundtable on Responsible Business and the Law, which explored diverse areas of the law that are fueling rising expectations of responsibility by business. Topics ranged from examining the history of corporate social responsibility and privacy law to lessons from Chinese corporate charters.

One topic of particular interest to the group was a presentation entitled Aboriginal Law: Compensation Principles and Opportunities for Economic Development delivered by Kirk Gehl, an Associate at Indigenous law firm, Callison & Hanna.

Since the Supreme Court of Canada’s landmark 1973 decision in Calder v British Columbia (AG) found that Indigenous claims to land based on pre-existing sovereignty exist distinct from colonial law, a political and social shift towards the recognition of Aboriginal Title & Rights has taken place. This has further been reinforced by the Supreme Court through the establishment of the Crown’s duty to consult and accommodate Indigenous groups.

“With an estimated $650 billion worth of resource development project investment across the country in the next decade, and with many of these projects expected to occur on or near the traditional territory of Aboriginal peoples, there is an unprecedented opportunity for Aboriginal peoples to pursue economic development while mitigating for potential impacts,” said Gehl.

Although industry does not currently owe a direct duty to consult and accommodate Indigenous groups, the evolving legal landscape has meant that more proponents are taking a proactive role in the consultation process by negotiating and entering into Impact Benefit Agreements (IBAs) with Indigenous groups, which has become a common part of responsible business for industry proponents.

“A challenge is that Aboriginal communities can lack the capacity to ensure that IBAs are implemented effectively,” said Gehl. “As a matter of responsible business, proponents need to seek proactive means to ensure effective implementation, including the facilitation of a strong working relationship between all Parties.”

IBAs are challenging the existing relationship that the Crown has with Indigenous peoples, and highlighting the role of corporate entities in recognizing Indigenous interests and furthering the Crown’s fiduciary duty of consultation and accommodation. IBAs can also be viewed as a means to seek reconciliation of Indigenous peoples and non-Indigenous peoples and their respective claims, interests and ambitions. They must, however, be developed carefully and responsibly to ensure that Indigenous communities receive a fair and just agreement, and that industry proponents do not take advantage of their unequal bargaining power.

“The role of responsible and ethical business as it relates to the interaction between industry and Indigenous peoples in Canada has never been more important, and these are fundamental discussions to be having now at UBC Sauder,” said Kim Baird, six-term Elected Chief of the Tsawwassen First Nation (1999-2012) and Advisory Board Member for the Peter P. Dhillon Centre for Business Ethics. “The opportunity here for collaboration, engagement and sharing of best practices with the business community and public is one of the strategic pillars that the Dhillon Centre is built upon.”

The Trudeau government has pledged to develop, in partnership with First Nations, Inuit, and Metis people, a Recognition and Implementation of Rights Framework, and has made a commitment to implement it before October 2019. This Framework will be a fundamental next step in the evolving Canadian legal landscape as it relates to Indigenous peoples, business, government, and other Canadians.