Asserting First Nations Rights for Economic Benefit Workshop - - PowerPoint PPT Presentation

Asserting First Nations Rights for Economic Benefit

Workshop Description

• The Assertion of First Nations Rights for

Economic Benefit workshops assists communities to assess how prepared they are to assert their rights and title to maximize the economic benefits.

• The workshops showed where and how

practical steps can be taken to improve their level of preparation.

Introductory Question

• What basic elements does a Nation need to

have in place in order to begin the process of asserting Aboriginal Title for economic benefit?

Workshop Overview

• Two-day workshop that focused on the

challenges and opportunities associated with economic projects proposed in Traditional Territories.

– Attendees were promoted to share their experiences and ideas with one another – Total Number of Participants: 89 – Total Nations that Participated: 47

Workshop Overview

• A self-assessment tool was used by workshop

participants to evaluate their Nation’s capacity in five important areas for assertion of rights:

– Governance and Administration – Land and Marine Use Planning – External Engagement (referral and consultation management) – Project Negotiations – Project Implementation

Workshop Outcome

• An Assertion of First Nations Rights for

Economic Benefit report is currently being drafted that will allow First Nations to independently assess their community, and determine a assertion plan going forward.

• The report will focus on “best practice”

Nations that have strong assertion practices and the steps they took to develop those practices.

Research Methodology

• Secondary Research

– 226 Sources Reviewed

• Primary Research

– Interviews with First Nations individuals and communities – Needs Assessment Survey

Secondary Research Primary Research Pilot Sessions Regional Sessions Report Generation

Interviews

• Interviews were conducted with representatives

from the following First Nations:

– Ktunaxa – Tk'emlups – Westbank – Metlakatla – Tsawwassen – Ehattesaht – Tzeachten – We Wai Kai – Xatsull – Yale

Needs Assessment Survey

• 200 Invitations sent out
• 78 Respondents

Affiliation of Survey Respondents

1 Iskut 32 Titqet 62 Ft St John Metis assocation 2 Moricetown 33 Stone Band 63 Doig River First Nation 3 Westbank First Nation 34 Hul'qumi'num Treaty Group/ Cowichan member 64 T'it'q'et 4 Skidegate 35 Skidegate 65 Tl'azten Nation, First Nations Summit 5 titqet 36 Iskut 66 Mount Currie 6 Cayoose Creek St'at'imc 37 Metis 67 Prince Rupert - Haida 7 Cayoose Creek 38 Pauquachin 68 Tsleil-Waututh Nation 8 Gitanmaax 39 Doig River First Nation 69 First Nations Fisheries Council of BC/Musqueam 9 AHOUSAHT - Nuu Chah Nulth 40 employed at Doig River member from saulteau 70 Provincial Aboriginal Tourism Sector Organization 10 Nisga'a Village of Laxgalts'ap (Greenville) 41 Samahquam Indian Band 71 Haida Nation 11 Doig River F.N 42 Alberta - but live and work in NEBC 72 Lax Kw'alaams First Nation 12 Squiala First Nation 43 Gitxsan Nation 13 Snuneymuxw Nation 44 Ahousaht 14 Prophet river first nation 45 Metlakatla 15 Gitsegukla 46 Seabird Island Band 16 Okanagan Nation - Upper Nicola Band 47 westbank first nation 17 Simpcw First Nation rules! 48 Saanich 18 Cowichan Tribes 49 Wetsuweten Nation 19 TL'ETINQOX-T'IN 50 Haida living in Musqueam 20 Lower Similkameen Indian Band 51 ?Esdilagh First Nation 21 Tk'emlups Indian Band 52 Westbank First Nation 22 Carrier Nation Burns Lake Band 53 K'ómoks First Nation 23 Penticton Indian Band 54 Heiltsuk Nation 24 Burns Lake Band 55 Ahousaht 25 Osoyoos Indian Band 56 Skidegate 26 Penticton 57 Skawahlook First Nation 27 Burns Lake Band 58 Syilx Nation/Okanagan Indian Band 28 I am Trondek Hwech'in but live and work in Coast Salish Territory 59

• Mt. Currie

29 Tseshaht 60 Taku River Tlingit First Nation 30 Lower Similkameen Indian Band 61 Splatsin 31 Haida

Overall Findings

• Nations are in very different stages in the

assertion process.

• Many First Nations recognize a need for basic

assertion competencies in key areas so they may take their rightful place within the socio- economic fabric of their territories.

• Competencies required appear common

across Nations.

Overall Findings

• The topic is very large.
• Strong need to break it down into manageable

pieces.

• A framework has been developed to achieve this.
• It is not the only possible framework.
• But we are hoping it will assist in structuring the

information.

• The framework is based on “Systems Thinking”

WHAT WE FOUND

Key Survey Finding

What is Needed to Begin?

Policy / Process Development Overall

Consultation

Referrals

Economic Development Planning

Aboriginal Title

• Inherent Aboriginal right to land, water and

territory.

• Sui generis, community has collective right

and jurisdiction over ancestral territories.

• Canadian courts recognize Aboriginal Title as

the result of occupation and ongoing social, political and legal systems.

Aboriginal Title Cases

• Calder (1973)
• Guerin (1984)
• Sparrow (1990)
• Delgamuukw (1997)
• Marshall (2003)
• Haida Nation vs British Columbia (2004)
• Taku River Tlingit vs British Columbia (2004)
• Ahousaht Litigation (2009)
• Tsilhqot’in Nation (2014)
• https://scc-csc.lexum.com/scc-csc/scc-

csc/en/item/14246/index.do

Understanding Aboriginal Title

• Court cases and legal precedents are

important.

• This workshop focuses more on the practical

requirements.

Workshop Goal

• Goal

– To bridge the gap between theory and practice in asserting rights for economic benefit. – Provide framework for asserting rights for economic benefit.

Prepare as a Nation Develop a Land Use Plan Engage external

• rganizations

Negotiate new

• pportunities

Implement new

• pportunities

Evaluate, learn, improve and continue

• Governance

and administration.

• Land and

Marine Use Planning

• Consultation,

Referral Management and Beyond.

• Negotiation of

IBA and other Agreements

• Implementation
• f Economic

Opportunities

• Evaluation of

the Assertion Process

• Establish a

vision for the Nation / Organization.

• Establish a

vision for the territory.

• Make external
• rganizations

follow the vision.

• Negotiate
• pportunities

that follow the vision.

• Implement
• pportunities

that follow the vision.

• Evaluate,

learn, improve and continue.

• Council
• Land and

Resource Dept.

• Referral

Management Office

• L&R, Ec Dev.
• Ec Dev.
• Project Team
• 2. Plan
• 3. Engage
• 4. Negotiate

5.Implement

• 6. Evaluate
• 1. Prepare

The Assertion Continuum

Organization of Assessment

• Assessment organised into ten basic categories:

1. Planning 2. Organizational Structure 3. Processes 4. Policy 5. Internal Community Engagement 6. External Stakeholder Engagement 7. Engagement with Other First Nations 8. Capacity Development 9. Funding 10. Partnerships

• Each category assessed in terms of:

1. Structure 2. Effectiveness

• 2. Plan
• 3. Engage
• 4. Negotiate

5.Implement

• 6. Evaluate
• 1. Prepare

What is Prepare?

• Analyze business opportunities

– Research companies and industry when proponents contact First Nation

• Community engagement strategies

– Meeting to determine how to / whether to participate in economic development projects – Visioning – if interested in evaluating the project

What is Prepare? Cont.

• Corporate policy development

– Develop internal policies for political/business governance interaction

• Communication strategies with partners

– Engage neighboring First Nations and communities regarding projects

• Feasibility studies
• Identify funding options (government,

foundations, partners)

Module 1 – Prepare: Sample Questions

Assessment Category Assessment Question Planning

• What types of planning are important for community

readiness?

• Many Nations have a wide range of plans and strategies. Do

these documents always translate into action?

Structure

• How can a formal organizational structure assist in effective

community administration?

• How could a lack of role clarity between Council and

Administration create challenges?

• Why is it important to be well organised internally before

engaging with outside interests?

What is Planning?

• Land/water use planning (LUP) and tradition land use

plans (TLUP)

– Community strategic planning – Vision, values, guiding principles – Technical assessment (delineating zones)

• Economic development plans

– Research – gather information on business opportunities – Strategic team development – creating team criteria and terms of reference – Developing work plans based on strategic business documents – Assessing appropriate organizational structures

What is Planning? Cont.

• Define land designations / Land code

– Map cultural significant sites – Begin assertion of Aboriginal rights and title through business engagement

• Communication strategies regarding Ec Dev

plans (internal and external)

Module 2 – Plan: Sample Questions

Assessment Category Assessment Question Planning

• Who has a Land and/or Marine Use Plan?
• How does your Land and Marine Use Plan support assertion
• f title?

Funding

• How can you overcome funding barriers to Land and Marine

Use Planning?

Engagement with Other First Nations

• What issues can Land and Marine Use Planning raise with

neighbouring First Nations?

• How can issues with neighbouring First Nations be
• vercome?

Land Use Planning

Related Terms

• Traditional Use and Occupancy Study (TUS)

– Focused on evidence of past use – Can be quite site specific – Subject to the “small spots theory”

• Aboriginal Interest and Use Study (AIUS)

– Similar to a Traditional Use Study – Can address current use – Conducted for a specific project

• Land Use Planning

– Use TUS and AIUS data – Go beyond to prescribing future use and management

Steps in Land Use Planning

(See Appendix B)

1. Pre-Planning

– Team Development – Workplanning – Communications Planning (internal and external) – Gather existing information

2. Planning

– Vision, Values, Guiding Principles – Technical Assessment (delineating zones) – Define Designations

3. Implementation

– Communicate the Plan (internally and externally) – Begin enforcement / engagement

What is Engagement?

• Consultation and accommodation processes

– Finalize economic development protocols (Strategic Engagement Agreements) with Province – Impact assessments (assess effect on First Nations cultural and economic use of lands/waters) – Assessment of resource value prior to project participation – Develop engagement and dispute resolution terms of reference for shared decision making process with Province – specific to one economic project – Nation-to-nation protocols for shared decision making processes – specific to one project – Prepare information to assist community members to understand project – Strategic mapping the involvement of internal departments and their roles

What is Engagement? Cont.

• Referral management (provincial process)

– Establish database and GIS mapping systems to support water/land use plans and laws – Create integrated referral system across internal departments – Implement systems to assess impact of proposed industry projects

• Proactively discussing business – alongside consultation with

Province

– Implement RFP process to seek business partners – Research industry and companies prior to making decisions – Compare potential partner companies against one another using relevant evaluation criteria – Develop business deals with partners and business plans for financial lenders – Develop IPO if preferred.

Module 3 – Engage: Sample Questions

Assessment Category Assessment Question Org Structure • What parts of your organization are involved in engaging

with external interests through referrals and/or consultation?

• Why is it important that these parties work together?

Policy

• Does your Nation have a consultation policy?
• Is this policy available to outside organizations?
• Why is this policy useful?
• How can you share this policy with outside organizations?

External Stakeholder Engagement

• Do you actively engage with external stakeholders such as

government and industry apart from specific projects?

• Why can proactive engagement with stakeholders be useful?

What is Negotiation?

• Develop negotiation team

– Create criteria and evaluate skill sets for negotiation team (business & cultural components) – Create team work plan and budget – Develop communications strategy

• Assess a proposal

– Evaluation project, as well as the wider political and legal environment (additional leverage?) – Review proponent’s business plan submitted to financiers (gather financial information) – Evaluate impact benefit agreements, revenue sharing agreements, equity offers, etc. – Create decision process – determine whether to proceed with negotiations

What is Negotiation? Cont.

• Negotiate

– Decide on desirable outcomes (monetary and non-monetary factors) – Develop MOU or other types of term documents – Draft / counter offer impact benefit agreements, revenue sharing agreements, equity position

Steps in a Negotiation

(Explained on the following slides)

1. Analyze

– The Project – The Wider Political and Legal Environment

2. Prepare

– Develop Team Structure – Create a Workplan and Budget – Gather Baseline Information – Develop Communications Strategy – Develop Negotiating Position

3. Negotiate

– Conduct Negotiations – Develop Agreement

Module 4 – Negotiate: Sample Questions

Assessment Category Assessment Question Org Structure • Which parts of your organization play a role in negotiations? Processes

• Is there a well defined process in your organization for how

the negotiating team interacts with Council, Land & Resources and Economic Development?

• Is there a formal process for how an offer can either be

approved or rejected?

• How could unclear processes lead to difficulties in

negotiations?

Internal Community Engagement

• Why is it important to keep your community involved in

negotiated processes?

• What can happen if you don’t?

• 1. Analyze
• Learn about the proposed project

– Life cycle – Business case

• Learn about the political and legal landscape

– Relationship with Environmental Assessment – Strength of your claim in the area – Politics of your own and neighbouring First Nations

• 2. Prepare
• Team Structure

– Blend of business, political and land & resource and cultural expertise. – Outside technical experts can be invaluable

• Team Operations

– Approval process critical

• Gathering Baseline Information

– Understanding as much about the project and existing conditions as possible.

• Communications Strategy

– For your internal community – For the outside world

• 3. Negotiate
• Understand the basic elements of an

Agreement:

– Monetary compensation – Non-monetary compensation

• Review and approvals process:

– When to leave the table – When to accept the deal

Recommended Reference

• IBA Community

Toolkit

– Appendix D – Mining IBA focused – Broadly applicable

What is Implementation?

• Develop implementation committee
• Create policies and procedures to monitor and

enforce the agreement

• Participate in the Business

– Decide legal and management structure for new business (governance) – Develop and implement corporate / First Nations reporting processes – Launch business – Create financial management and reporting processes

Implementation

• Involves

– Factors specific to the project – Overall readiness of the Nation to do business

• Many Nations struggling with

readiness

• Makes project implementation more

difficult

Module 5 – Implement: Sample Questions

Assessment Category Assessment Question Org Structure • Which part of the organization needs to be ready to

implement opportunities stemming from inherent rights?

• How ready to take advantage of new opportunities is this

part of your organization?

Processes

• How can effective business governance processes enable

successful implementation?

Capacity

• How can human resource capacity be a barrier to

implementation?

Partnership

• How can partnerships assist with successful implementation

and overcome capacity gaps?

Steps in Implementation

Implementing the Agreement

1. Develop Implementation Committee 2. Monitor 3. Enforce 4. Review/Amend Agreement

Participating in the Business

– Develop legal and management structure for new business – Develop and implement effective organizational processes.

Purpose of Evaluation

• An opportunity to get up to the mountaintop

and look down at the whole system:

– Opportunity to reflect. – Opportunity to improve.

Sample Evaluation

• Assessment of Assertion Competencies:
• 1. Preparation
• 2. Planning
• 3. Engagement
• 4. Negotiations
• 5. Implementation
• In terms of:

– Structure – Effectiveness

• 5. Implementation
• 1. Preparation
• 4. Negotiation
• 3. Engagement
• 2. Planning

Common Assessment Result:

• Administration has lots of

policy but is not very effective in reality

• There’s a formal land use

plan in place and it’s being used somewhat effectively.

• Their approach to

accommodation and consultation is fairly structured and moderately effective.

• Negotiations is totally

unstructured but it seems to be working.

• Implementation is where the

wheels come off!

ACTION PLANNING

Using the Assessment to Plan for Change

• Where are the issues?
• Is the issue structure or effectiveness?
• How much of a priority is each area?
• What part of the organization is responsible

for the area where the gaps occur?

Action Plan Summary

• 1. Item
• 2. Priority
• 3. Necessary Action
• 4. Responsible Party

QUESTIONS?