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Northern Gateway decision confirms modern expectations for aboriginal development projects

A person protests against the Northern Gateway pipeline project in Vancouver, B.C., on May 10, 2014.

Ben Nelms/REUTERS

Jean Paul Gladu is chief executive officer of the Canadian Council for Aboriginal Business.

The recent Federal Court of Appeal decision confirming that the Canadian government failed in its duty to consult with aboriginal communities prior to approving the Enbridge Northern Gateway project has opened the door to a new era of progressive and positive aboriginal relations. Why? Because it supports the expectation for active and deep engagement between Canada's corporate and aboriginal communities.

To be fair, we must remember that the court's decision was based on the current state of legal and social expectations, and major projects, such as pipelines and mines, take years or decades to plan and develop.

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When Enbridge began planning this project 15 years ago, the rules were not the same as they are today, and we must consider the progress Enbridge made with many First Nations along the proposed route, which speaks to their ability to learn and adapt. Had they known then what we all know, expect and celebrate as best practices today, they may have proceeded differently.

From one company's hard lessons come learning opportunities for others, though, and there is more to aboriginal business relationships than meets the eye, or previous institutional perceptions. Companies across Canada are now recognizing the importance of the legal requirements and social expectations attached to the duty to consult, and are developing strategies to fulfill it as the issue continues to evolve in a changing political landscape. Those that fail to adapt, and continue to rely on the old models of doing business, can and will miss the new benchmark.

In order for Canadians to understand the complexity of the changes happening across this country, we need to open our eyes to Canada's rapidly evolving economic landscape. Aboriginal communities are taking on a progressive leadership role in the growth and economic development of their communities, and are a growing force in the Canadian economy. Aboriginal businesses contribute more than $13-billion a year to Canadian gross domestic product (GDP). And in more than 200 decisions, the courts have consistently affirmed the rights of aboriginal peoples.

This position of strength has reinforced aboriginal resolve that continues to effect positive legal and political change across the country, and raised the expectations of aboriginal peoples and communities. Their voices have a rightful place in the national business conversation, and their concerns must be respected.

In the midst of such systemic change, new situations and questions will arise that challenge the historic status quo. In the context of the Northern Gateway project, it must be asked: What happens when aboriginal communities vote 70, 80 or 90 per cent in favour of a development project? How do you address those community members who are not in favour?

The court has communicated through the Northern Gateway decision the importance of meaningful engagement and the development of positive relationships with all aboriginal communities affected by a project. Here is where the opportunity lies to learn and understand more about aboriginal communities and leadership. Canadian businesses need to understand that meeting these obligations will require a foundation of equitable and respectful relationships, and aboriginal communities expect these relationships to exist before, during and after a project is completed.

At the outset of a proposal, companies need to affirm the right for aboriginal communities to voice what is good for them in the context of their requirements, traditions, and systems of government. Aboriginal community members and leadership must be provided the opportunity to participate in the project planning stage, such as helping to choose a proposed pipeline route, and for those not in favour of a project, to have their voices heard and concerns acknowledged, resulting in clearer options and better outcomes for all parties.

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Canadian business can no longer view the duty to consult as simply a legal obligation that must be met, or just another box to be ticked along the way.

The results of positive and progressive approaches to aboriginal relations are the improved economic self-reliance of aboriginal peoples, and strong relationships and partnerships with Corporate Canada. My own organization, the Canadian Council for Aboriginal Business, encourages and supports these partnerships, and works toward building trust and respect among our communities and Corporate Canada. Our research shows that Canadian companies that have successfully built strong relationships among aboriginal communities and businesses fulfill not only the duty to consult, but ensure opportunities for their aboriginal community partners to contribute to project planning and development beyond the minimum action required by law, and in alignment with international best practices.

The Northern Gateway project decision should not be heard as the sound of a slamming door, but as an invitation and opportunity to strengthen proposals and projects through deeper aboriginal engagement and enduring commitments. It's about real aboriginal participation in projects, where the creation of meaningful partnerships requires reciprocal investments of respect, time and trust – like any good relationship.

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