Indigenous Rights: What Every Investor Needs To Know

The recognition of Indigenous rights in Canada dates back to 1701, when France and 40 First Nations signed an agreement aimed at ending hostilities. Over the centuries, the push for Indigenous rights has led to key decisions, reaffirming that these laws and principles must remain a priority. 

Definitions of Indigenous rights vary due to the diversity among First Nations, Métis, and Inuit communities in Canada. At its heart, Indigenous rights refer to the inherent, collective rights arising from the original occupation of the land now called Canada. These rights reflect social orders that existed long before European arrival in North America. Indigenous rights represent the right to independence through self-determination in areas such as land, resources, culture, and governance.

Indigenous Rights: Laws and Principles 

There is no shortcut to investing in Indigenous projects. Investors aiming to venture into these opportunities must fully recognise and respect Indigenous rights. These rights set the foundation for responsible investment, and disregarding them can jeopardise even the most promising projects. No matter the potential for multi-billion-dollar returns, sidelining Indigenous rights risks halting operations unless projects are realigned to honour these standards. For investors, embracing these frameworks is essential, not only for compliance but to build trust, foster genuine partnerships, and ensure the long-term success of their ventures. 

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 

On 13 September 2007, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), formalised as General Assembly Resolution 61/295. This resolution upholds Indigenous rights as recognised by section 35 of the Constitution Act, 1982. Following UNDRIP principles enables investors to align with global standards for ethical and responsible Indigenous engagement. 

Canada’s Bill C-15 (UNDRIP Act) 

Bill C-15 is in congruence with principles of UNDRIP, mandating that federal policies respect and uphold Indigenous rights, with an emphasis on transparency and accountability. This legislation offers investors valuable insight into Canada’s legal landscape, providing a clear framework for making investments that are fully compliant with these established laws and principles. 

Free, Prior, and Informed Consent (FPIC) 

UNDRIP is the cornerstone protecting Indigenous rights, with Free, Prior, and Informed Consent (FPIC) as its essential principle. This ensures that Indigenous rights are fully respected when their lands and resources are used. Upholding informed consent builds trust, promoting lasting partnerships and community support for projects in Indigenous territories. 

Impact-Benefit Agreements (IBAs) 

An Impact Benefit Agreement (IBA) legally binds a community and developer when a project has direct or indirect effects on local communities. The process begins with pre-negotiation, focusing on relationship-building between communities and project proponents. This stage is followed by negotiation, implementation, and a final evaluation after the project's completion. The evaluation assesses the IBA's effectiveness, providing insights and benchmarks for future agreements.  

Principles of Reconciliation 

The Reconciliation & Responsible Investment Initiative (RRII) has published a comprehensive guide for investors, outlining principles essential to advancing reconciliation 

1. The United Nations Declaration on the Rights of Indigenous Peoples is the guiding framework for reconciliation, applicable at all levels and across all sectors within Canadian society.
   
   
2. First Nations, Inuit, and Métis peoples, as the original peoples of Canada, hold Treaty, constitutional, and human rights as self-determining nations. These rights must be recognised and respected.
   
   
3. Reconciliation is a healing journey requiring public truth-sharing, apology, and commemoration that openly acknowledge and address past injustices.
   
   
4. Reconciliation involves actively addressing the ongoing impacts of colonialism on Indigenous education, cultural heritage, language, health, child welfare, justice, and economic opportunities.
   
   
5. Reconciliation should promote a fairer, more inclusive society, reducing disparities in social, health, and economic outcomes between Indigenous and non-Indigenous Canadians. As Treaty peoples, all Canadians share the responsibility for ensuring respectful relationships.
   
   
6. The insights and wisdom of Indigenous Elders and Traditional Knowledge Keepers are essential, offering valuable perspectives on ethics, traditions, and practices that are key to enduring reconciliation.
   
   
7. Revitalising Indigenous cultures and incorporating Indigenous knowledge systems, oral histories, laws, and land connections into reconciliation efforts are crucial for meaningful progress.
   
   
8. Effective reconciliation requires sustained political will, collaborative leadership, trust-building, transparency, and a significant investment of resources.
   
   
9. Reconciliation must involve continuous public education, dialogue, and particularly youth engagement to ensure understanding of the history and impacts of residential schools, Treaties, and Indigenous rights, as well as the ongoing contributions of Indigenous communities.
   
   
10. Long-term reconciliation relies on a dedicated commitment to these principles, with investors encouraged to take an active role in advancing fair, responsible, and mutually beneficial relationships with Indigenous peoples across Canada.

Lessons from the Past: The Marshall Case 

One of Canada’s celebrated cases highlighting Indigenous rights is R v. Marshall (1999). The R. v. Marshall case (1999) centres on the Indigenous right to harvest resources for livelihood, specifically fishing rights. This Supreme Court of Canada case involved Donald Marshall Jr., a Mi’kmaq man who was charged with fishing eels out of season, using illegal nets, and selling his catch without a licence, all of which were in violation of federal regulations. 

The Court ruled in favour of Marshall, upholding the Mi'kmaq’s treaty rights based on the 1760-61 Peace and Friendship Treaties. These treaties guaranteed the Mi'kmaq the right to earn a “moderate livelihood” through activities like fishing, hunting, and gathering. The decision affirmed that Indigenous peoples have the right to harvest and trade resources to support themselves economically, a right that exists independently of government licensing or regulation unless such regulation is justified and does not infringe on their rights unduly. 

The Marshall case serves as a perfect example of the implementation of Indigenous rights law in Canada, particularly for the Mi’kmaq and other Indigenous groups along Canada’s Atlantic coast, as it reaffirmed their treaty rights to access resources for livelihood. However, the decision has also led to tensions and ongoing debates over how "moderate livelihood" fishing rights should be exercised and managed, especially in relation to the commercial fishing industry. 

While the Marshall case may not directly impact investors, it demonstrates the law's strong commitment to Indigenous rights. This case reinforces that legal protections for these rights remain unwavering, with no provisions set aside under any circumstances. 

Best Practices for Investors 

Investors can follow several best practices to ensure respectful and mutually beneficial partnerships with Indigenous communities:

Engage Early and Consistently 

Early and consistent engagement with Indigenous communities helps build trust and transparency. Initiating consultations at the planning stage, so investors can address concerns, adapt project plans, and align with community values. 

Respect Free, Prior, and Informed Consent (FPIC) 

Obtaining FPIC is essential for ethical and sustainable projects. Indigenous communities must fully understand a project’s potential impacts before giving consent. Prioritising FPIC enables investors’ long-term support from Indigenous peoples, reducing the risk of disputes. 

Negotiate Impact-Benefit Agreements (IBAs) 

Establishing IBAs can formalise mutual commitments, including employment opportunities, revenue sharing, and environmental protection. These agreements provide clarity, promotes cooperation, and demonstrate respect for Indigenous rights. 

Conduct Environmental and Social Impact Assessments (ESIAs) 

Comprehensive ESIAs help investors identify potential environmental and social risks early on. Involving Indigenous knowledge in these assessments can lead to more robust environmental management strategies that respect traditional practices. 

Support Community Development Initiatives 

Contributing to local infrastructure, education, and healthcare initiatives can build goodwill and ensure long-term project success. Investors who genuinely invest in Indigenous communities often find increased support and reduced resistance. 

Respect Indigenous Culture and Traditional Knowledge 

Indigenous communities possess unique ecological knowledge that can enhance project sustainability. Respecting their insights in areas like biodiversity and conservation fosters cultural appreciation and can improve project outcomes. 

Upholding Indigenous Rights Is An Essential Obligation for Every Investor

Investing in Indigenous projects in Canada offers both opportunities and responsibilities. By respecting Indigenous rights, adhering to legal frameworks, and engaging in transparent partnerships, investors can build ethical, sustainable, and successful ventures. Learning from past violations, aligning with Indigenous laws, and implementing best practices can lead to stronger relationships with Indigenous communities, ensuring investments that are mutually beneficial and long-lasting.

The Canadian Indigenous Investment Summit

The Canadian Indigenous Investment Summit serves as a crucial platform where investors, visionary leaders, and Indigenous communities can share a common business goal. The focus is not only on gathering for one event, but on building a fruitful partnership and creating a movement that unites all investment sectors to promote sustainable economic growth.  

The summit offers valuable resources and insights through our team of subject matter experts across various sectors, facilitating access to meaningful Indigenous investment opportunities throughout Canada. Whether you're an investor or eager to deepen your understanding of Indigenous investment, we provide a platform for impactful discussions and the exchange of valuable insights. With a diverse array of investments converging, we ensure that attendees of the summit will benefit from a seamless and efficient business environment.  Register your interest and save a spot at the summit. 

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