There is no standardized engagement and consultation process, and a ‘checkbox’ approach to engagement will not build meaningful partnerships with First Nations. First Nation communities expect the industry to take the time necessary to understand them as communities, to understand their values, challenges, and requirements that will protect their way of life. They also expect that companies will internalize this learning at an executive management level, and not make engagement and consultation the responsibility of a consultant or junior employee.
The level, scope and extent of engagement and consultation will depend on the type of exploration project that is being proposed by the company. A single-year project may require only limited engagement, while a multi-year drilling might involve engaging with the whole community, including focused efforts to involve elders and youth.
Exploration companies should treat engagement as an opportunity rather than an obligation. First Nation communities can provide local labour, procurement and significant local knowledge which can be a significant benefit to managing and operating mineral exploration projects in Yukon. Working together to build First Nations' economic participation in projects is an opportunity to build a healthy long-term relationship that directly benefits the project and the community.
There have been many examples across Canada and globally of what can be considered to be Best Practices. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the United Nations General Assembly in 2007 and is a document that describes the global rights of Indigenous peoples in terms of culture, identity, language, health, education and other areas. This Declaration further contains the approach of Free, Prior and Informed Consent (FPIC) as a global standard to obtain consent by Indigenous peoples before final decisions are reached that may impact them within their traditional territories. In 2010, Canada accepted UNDRIP as an “aspirational” goal for engagement and consultation with Indigenous peoples.
There are many excellent examples across Canada and around the globe of Engagement and Consultation Best Practices that were reviewed during the preparation of this Guide. There are a few key principals that stand out regarding Best Practices that are summarized below:
- Engage early, often and consistently;
- Build relationships on a “people” level to build long term trust;
- Build an understanding of fundamental issues and concerns that need to be integrated into project planning and development;
- Follow through on promises and commitments; and,
- Be patient.
It is worth noting that there is a legacy of minerals projects in Yukon that has resulted in public liability issues and negative environmental effects. This has resulted in suspicion among affected First Nations communities about the intent and the future of mineral exploration projects in Yukon. Having said this, there are also success stories where mineral exploration companies and First Nations have achieved solid relationships both with and without written agreements by applying many of the Best Practices that are outlined below.
This section describes Best Practices for engaging with all First Nation governments. It is important to note that these Best Practices reflect a compilation of current examples across Canada and internationally as well as from the history of relations experienced across Northern Canada. It is also important to note that following Best Practices is not a guarantee of reaching an agreement on a proposed project. However, following Best Practices is an effective way of managing corporate risk and over time can be a significant asset for a minerals exploration project undergoing a prefeasibility or a feasibility assessment for a mine development proposal.
These Best Practices are organized by key engagement themes. It is comprehensive and therefore some items will apply to all exploration projects no matter the size, and others will apply only to the more advanced projects. It is useful to think about which of these Best Practices will be useful to your project at the scope you are considering. For instance, supporting the recruitment of a Community Engagement Coordinator is potentially useful at a more advanced stage of exploration, but unnecessary at early stages of exploration.
Theme 1 - Early and Sustained Engagement
First Nation governments generally support early contact with exploration companies at the prospecting and grass roots exploration phase prior to the development of a formal project proposal. Engagement should begin before a project is designed in order to include First Nation perspectives at a point where it will impact that design. By doing so, these perspectives will then have impact at all stages and scales of exploration work. In some cases, this first effort to engage may result in a First Nation expressing no interest. However, that the attempt was made is considered valuable in sending the message that the company is willing to build a relationship.
Sustained engagement throughout all phases of exploration is also of considerable value. Each engagement phase contributes by setting a foundation for the next.
The intention of engagement is to understand First Nation values and to find ways to support and enhance the application of these values through the project.
Theme 2 - First Nations Governance
Advance homework is useful to gain a good working knowledge of First Nation history, rights, governance framework and structures. Demonstrating this knowledge facilitates effective engagement and consultation. Before reaching out to a First Nation, companies should work to educate themselves on:
- the First Nation’s past experiences with mineral exploration companies;
- any agreements between the First Nation and other companies on exploration and mineral development;
- status of self-government development and state of negotiations with the Federal government and the Yukon government;
- any agreements between the First Nation and Yukon government on governance issues and areas such as natural resources management; and,
- Traditional Territory or non-treaty traditional area overlaps in relation to the project location including related infrastructure such as road access.
A second Best Practice here is to open dialogue on how the First Nation wishes to be engaged, and applying different engagement approaches to respect these wishes. Become familiar with the First Nation’s existing engagement guidelines and protocols. In many cases the “how to engage” will change depending on the phase of exploration. If a good foundation is set early, a comfort level built on familiarity and respect will evolve to the benefit of the First Nation and the company.
A third Best Practice is to be flexible so that the engagement approach respects the pressures faced by the First Nation relating to workload, competing interests for time and resources and delays caused by unforeseen events in the community. Be aware that many First Nation governments expect that exploration companies will continue to engage and consult over the entire lifecycle of the project. It is also important to understand that many First Nation legal traditions are orally based rather than written, and that verbal commitments are often treated as seriously as contractual obligations.
Finally, all First Nations have defined or undefined rights and interests throughout their Traditional Territory or non-treaty traditional area. These rights are captured for many First Nations in land claims and self-government agreements. It is important to recognize the unique circumstances of the First Nation with whom they are engaging. Does it have a land claim agreement or self-government agreement? What are the laws and policies of the First Nation that can affect the relationship? Is the First Nation pursuing agreements with governments that will create obligations based on rights? Ultimately it is important to create an engagement process that respects the unique attributes of the First Nation government.
Theme 3 – Community Support
Willingness to be actively engaged at the community level is positive, respecting that in some cases there may be circumstances that will affect the degree of engagement. Generally it is valuable to express interest in meeting with elders and other traditional land and resource users, and to participate in activities “on the land”. This provides the company with familiarity and experience relating to First Nation issues and concerns as they relate to matters fundamentally important to citizens. It also facilitates personal connections that lead to building of trust and respect, the building blocks of relationship.
A second Best Practice here is to create mechanisms to ensure clear and effective communications. Depending on the stage and sophistication of exploration, this may include support for a Community Engagement Coordinator or an Engagement Committee comprised of First Nation citizens and corporate management. Be prepared to share information with First Nation communities in language that the audience can understand, and recognize that elders, youth, and citizenry have different educational backgrounds and information needs.
Third, be sensitive to community values and their relationship to the cultural, spiritual, and social impacts of project proposals. Look for ways to incorporate these values into the project by mitigating or avoiding the negative consequences of development. In addition, be aware of annual community events and important times of year, such as hunting and gathering seasons, general assemblies and potlatches. Engagement planning should take these matters into consideration when planning schedules and priorities. Flexibility will be important here.
A fourth Best Practice is to design community engagement events to be two-way exchange, not just delivery of information. Giving the community the opportunity to provide its views on priorities and sensitivities relating to traditional practices is useful for relationship building.
Theme 4 – Corporate Support
A first Best Practice is to give high priority to engagement and consultation in all exploration planning and implementation. Just as “understanding the rocks” is a core component of the exploration project, “understanding community” and building lasting relationships is also a core value to the project. Building on this, sharing the company’s strategic and work plans relating to engagement and consultation with the First Nation, and allowing it to be modified as context changes is positive in establishing a climate of trust.
Another Best Practice is to recognize at the early stage of exploration that there can very well be different kinds of agreements (written and not) that will apply depending on the stage of exploration, and communicating this understanding to the First Nation. By so doing, this can lead to a more realistic appreciation of what can be expected depending on the stage of exploration. The pressure to put everything on the table at a very early stage can be significantly reduced.
Be willing to consider the following areas for written agreements:
- Mutual responsibilities;
- Financial commitments;
- Communications protocols;
- Recording of events/meetings;
- Support to the First Nation government;
- Consultation schedules;
- Information sharing;
- Confidentiality requirements.
It is important to ensure adherence by the company and any contracted support to both the spirit and intent of agreements made between the company and First Nation. This involves focussed and sustained implementation management.
Assign senior management to maintaining the engagement process commitments, and ensure that this is “back stopped” by setting engagement values as a corporate value for the life of the project at its many stages.
Finally, consider types of financial, technical and logistical support that can be provided to First Nations to facilitate the engagement process. Look for opportunities to use corporate resources to create a lasing community benefit. Be careful to ensure all parties are clear on the substance, duration and intent of support, and recognize that this type of support does not guarantee First Nation support for a project.
