27 Best Practices for Working on Indigenous Territory

If you wish to conduct business or start a project on a Nation’s territory (or if you identify as Indigenous yourself and are working on another Nation’s territory), you may be asking yourself what you should do, given all the legal uncertainty surrounding the Duty to Consult and Aboriginal title. While much is still to be decided in court about Aboriginal title, it’s always advisable to not be the party that is paying to have those legal boundaries tested in a lawsuit.

First, while it is the Crown’s legal obligation to consult a Nation before accepting or rejecting your project, a businessperson should take matters into their own hands and begin their own relationship-building. By the time the Crown gets around to consulting for your project, the accommodations that may be required will become more expensive to make. Additionally, you will be foreign to the peoples with whom you wish to have positive working relationships. The Duty to Consult does not start after you have already made concrete plans for your project, but at the earliest possible opportunity. Aboriginal title may not have been established by a court yet on the traditional territory that you seek to work on, but you should act as though Aboriginal title already exists.

Start relationship-building early and start broadly. Engage both band and hereditary leadership and consult with individual citizens. The legacy of the Indian Act and the Numbered Treaties has shattered trust between Indigenous peoples and government and industry, and it is a long road to rebuild that trust.

What works for one Nation does not work for another, as Nations all have unique languages, cultures, and traditions. Recognize that each relationship with each Nation needs to be started anew. That said, all peoples have some things in common: we all want prosperous futures for our children, and future generations have trusted all of us to be stewards of their environmental inheritance.

Start early. It takes time to develop relationships and to create accommodations that will respect Aboriginal title. While we have discussed in-depth that the Duty to Consult is not necessarily the duty to agree, it would be highly counterproductive to treat the consultation as giving mere notice to the affected peoples.

Another reason to start early is the chronic underfunding of Indigenous band offices. You may not receive a response for quite some time. Nations have not been given funding by the Crown to adequately engage with this new legal order, and so may not respond quickly to requests — especially ones that require them to use experts to determine the environmental impacts of a project. By starting early, you can ease the bottleneck.

Use precedents from other deals with both that Nation and other Nations. Research supply and employment agreements that may be of interest to the host Nation. Do not neglect environmental considerations.

If you are Indigenous yourself or have Indigenous partners, there may be funding available from the province to engage in entrepreneurship. Such funding includes the Aboriginal Entrepreneurship Program for all Indigenous people in Canada. Other funding or business loans may be tied to specific regions, such as ones that TRICORP offers for those in Northwest B.C.^[1]

Last, come with an open heart and mind. If you are encountering resistance to your ideas, have an honest conversation with yourself: Is this project the right one for this Nation? By being open to that possibility, only then can you engage in meaningful relationship-building and consultation.

For more suggestions on working ethically with Indigenous communities, review Working with Indigenous Communities Ethically.