Good afternoon.
My name is Dwight Newman. I work as a professor of law and Canada research chair in indigenous rights in constitutional and international law at the University of Saskatchewan. In this role, I carry on a broad-based program of research on indigenous rights law, with one significant focus within that being on global intersections of indigenous rights and resource development. I also serve in related policy discussion roles, including as a member of the International Law Association committee on the implementation of the rights of indigenous peoples, and I've engaged in some related practice roles. However, I appear today as an individual simply to assist the committee in whatever ways I can.
I'll begin by commending the committee for its attention to this issue framed in broad ways. There's both room and need for broad, strategic thinking in the context of reconciliation in general, and economic reconciliation specifically, and trying to find good ways to move forward together.
I'm going to do two things in my opening remarks. First, while appreciating the committee's efforts to think creatively, I will probably sound somewhat of a cautionary note on the idea of going out and finding international best practices elsewhere, and will urge ongoing attention to the need to keep doing sophisticated policy work and developing the best ways forward that work for Canada and the indigenous peoples of Canada.
Second, I will try to refer to some promising practices present in emerging ways in Canada and in other jurisdictions. I'll suggest learning on a smaller scale, more so than hoping to find one perfect international best practice that we can import.
On my first point, then, we need to be cautious about seeking the perfect international best practice. Let me offer a few examples of some risks that can arise in trying to transplant best practices between very different contexts.
Consider something such as the Sami Parliament in Norway, often cited as a powerful example of an institution for consultation with indigenous peoples. There's a mechanism within the procedures by which Norwegian legislative and policy development processes work so that issues that could affect the Sami people of Norway trigger an alert to the Sami Parliament and consultation may proceed from there at a full countrywide level. However, the Sami Parliament operates in a very different context in which, first, the Sami people are more linguistically and culturally unified than the diverse indigenous peoples of Canada.
A key issue for Canada, were it to think about moving toward some larger scale consultation mechanism as part of Canadian policy, going beyond the duty to consult, in thinking about anything similar to the Sami Parliament, would be the need to see the indigenous peoples of Canada decide in what ways, through what more complex combination of institutions, they could present their interests analogous to the way the Sami present through the Sami Parliament.
Second, we also shouldn't glamorize Norway for its indigenous engagement on energy issues. Most Norwegian energy development and the source of Norway's immense wealth has been North Sea oil, which the Norwegian government took the view had nothing to do with the Sami people whatsoever.
If we're thinking just within Scandinavia, in neighbouring Sweden where resource development questions centre on potential mining development that almost inevitably interferes with the Sami people's reindeer herding—which I think this committee heard a bit about in prior testimony—there's a much more tense situation on indigenous rights generally. Sweden hasn't found the same solutions as Norway, but it operates in a very different context.
In Alaska, which I think has been referred to before in this committee, many indigenous communities have prospered from north slope oil and the foundations it provided for a set of regional economic development corporations. Today, there's meaningful support for the Alaskan system within the state. However, the origins of the system came effectively from a top-down decision that aboriginal title claims in the state were to be resolved on a statewide basis all at once. While there were some negotiations with the Alaska Federation of Natives, which also contributed ideas such as that of a corporate structure in which native Alaskans would be stockholders, the 1971 Alaska Native Claims Settlement Act adopted by the U.S. Congress to implement a resolution to all aboriginal title claims in Alaska at the same time has met with mixed reactions over the years due to its top-down character. Therefore, even while some tout what the Alaskan system achieved, its origins came from a process that would not fit with many Canadian expectations of engagement with indigenous peoples in policy development and claims resolution.
I could go on with more examples along similar lines showing why it's very important to be cautious in transplanting ideas, but I want to turn to smaller-scale best practices that are already emerging in Canada and elsewhere, and that have a lot of potential.
Successful engagement is probably best said to exist when all involved can say they've had a successful process and a successful result. Two jurisdictions in the world stand out, from large numbers, of win-win agreements in the form of indigenous industry agreements to facilitate particular developments. Those are Australia and Canada itself.
Indigenous industry agreements have received much less scholarly study than one might hope, although there is an Australian scholar who has done some important comparative work on agreements in both Canada and Australia. He identifies a lot of contextual factors for what makes for successful agreements and what doesn't.
A colleague and I ran a workshop recently and are working on an edited collection on indigenous industry agreements. I think we would agree with much of that. Facilitating indigenous industry agreements is probably one of the best ways of finding engagement that works.
Here, I deliberately use the term “indigenous industry agreements” as a broader term than just “impact benefit agreements” or IBAs, a concept that has drawn much attention over the years. Some IBAs have brought significant resources into indigenous communities, and some have enabled building for the future, particularly when they have included strong provisions supporting business development that outlasts a particular non-renewable resource or that builds from the base of an existing renewable resource.
There are other, further models to consider, however, including joint venture agreements, equity partnerships—as referenced already in this session—and even indigenous-led development that may be significant parts of the future of indigenous industry agreements more generally. When some indigenous communities themselves seek to undertake particular energy developments, their doing so provides a strong sign of successful engagement or even something going beyond mere engagement.
Here, though, we need to think of many different policy issues, including sound financing mechanisms. We also need to be very attentive to the fact that indigenous communities in Canada are highly diverse. Some wish to ensure strong protections for traditional lifestyles. Others are very enthusiastic to participate in energy development and even to be leaders in energy development.
One of the risks of too much legislation in Canada is framed around our adopting some assumptions rather than others. Too much is framed around old assumptions that development is going to occur or not occur after a bit of consultation with indigenous communities who are assumed to be “in the road”. Then, even in current legislation we continue to see legislation putting obstacles in the road of those indigenous communities that want to carry out indigenous-led development.
There is, then, a lot of complexity at stake.
I'll refer just briefly in closing to the 2013 report of the United Nations special rapporteur on the rights of indigenous peoples, which concerned extractive industries. Even while cautioning against some types of development, the special rapporteur commended the idea of indigenous-led development. I would suggest it is the practice that we should seek to foster in any context in which it works, because it's certainly one that brings everyone together. Wherever it can work, just as constructive indigenous industry agreements work but going even beyond them, indigenous-led development represents a real win-win in resource development, bringing a lot of alignment between otherwise competing interests.
Making it work requires a lot of ongoing and important policy work, on finance issues, opening opportunities for indigenous business and economic success more generally, and all kinds of other policy issues that are different from the traditional concerns we've tended to focus on. I think they speak to the future.
I'll end on what I hope is an optimistic note. It may be possible to learn some things from various practices that have been developed, and I again commend the committee for doing so. In my own view, the best practices are probably still ahead of us and are ones to keep seeking.