Miller will speak at Canadian Lawyer's ESG summit about reconciliation's interplay with other ESG goals
Rob Miller is the CEO and co-founder of Miller Titerle, a Canada-wide law firm working at the intersection of business and Indigenous law.
For our CL Talk podcast, he spoke about “Indigenous partnerships: Critical components for success.” Tamara Napoleon at Miller Titerle will also examine that topic at the ESG summit, which will take place on October 30 in Toronto.
Listen to our full podcast episode here:
This episode can also be found on our CL Talk podcast homepage, which includes links to follow CL Talk on all the major podcast providers.
Below is a summary of the conversation, edited for length and clarity:
I worked at a large national law firm from the early 2000s until 2009, when we started our firm. Although I didn't initially aspire to work in a large legal organization, it was a valuable experience. I'm from Fort St. James, a small forestry town in northern BC, where I had a multicultural upbringing, heavily influenced by Indigenous culture and traditions.
As I advanced in my legal career, focusing on natural resource projects, I began receiving calls from people I grew up with who had moved into leadership roles within their Indigenous communities. They sought advice on issues like dealing with pipelines affecting their lands, and I found this work incredibly rewarding. It allowed me to engage with communities directly, see the impact of my work, and contribute to increasing prosperity in areas where it was scarce.
This experience made me reflect on my values and what I wanted from my career. I started discussing with my co-founder, Jim, the idea of creating a business law firm that did sophisticated work while being values-driven and purpose-based. We were excited about the concept and came up with our first mission statement, inspired by an afternoon on a sunny patio to help people do good things. Our goal was to show that sophisticated legal work doesn't have to be limited to big law firms – lawyers can succeed by boldly standing for their values and the purpose behind their work.
In 2009, with the support of a client base I had developed, we left our previous firm. We were fortunate to work with large resource companies focused on ESG and emerging trends in consultation and accommodation, as well as Indigenous clients at the intersection of business law, resource development, and the reinvigoration of Indigenous communities, economies and nations. This mission has stayed with us, and today, our firm continues to serve a mix of forward-thinking businesses that care about ESG and Indigenous organizations that are increasingly driving the mainstream Canadian economy.
There are a few key points I'd like to highlight, and I think these will be recurring themes throughout this discussion. One of the main ideas is the need to move away from the traditional Western business mindset, which often views relationships as transactional – focusing on one-off interactions to accomplish a specific task. Instead, there's a growing emphasis on creating more holistic and comprehensive partnerships. This involves building evergreen relationships and fostering the right ecosystems for consent, where the intent of agreements isn't just about achieving a single goal, like project development, but also advancing broader objectives tied to truth and reconciliation and supporting the revitalization of Indigenous nations, governments, and economies. Shifting from transactional to consent-based, relationship-driven agreements is a significant challenge for businesses.
Another challenge is what I refer to as "death by assumption." Many companies enter engagements with Indigenous communities holding unexamined assumptions about the community's long-term goals, objectives, and strategies. They often assume that the approach to engagement can be uniform across all communities. However, this is a significant misconception. The more companies, project developers, or governments can identify and challenge these assumptions early on, the more successful their engagements will be. The idea that a pan-Indigenous perspective applies universally is one of the biggest fallacies in the Indigenous engagement sector. Companies that approach these relationships with an open mind, ready to have genuine conversations about each community's unique goals, will ultimately be more successful.
I can think of several examples, particularly in British Columbia, where I'm based. There have been successful partnerships in the clean energy sector in our backyard. Many large projects that have bid into power calls in the past have demonstrated how energy companies can effectively engage with communities by understanding what drives them and aligns with their long-term goals. These companies have gone beyond just equity ownership and profit-sharing structures. They've creatively supported community goals like youth development, government initiatives, and providing access to advisory services or government relations expertise.
The clean energy sector has generally done a great job in this regard. However, there's a common assumption that environmentalist or NIMBY (not in my backyard) agendas always align with Indigenous goals. Often, that's not the case. However, clean energy projects naturally align with Indigenous community objectives, making for a good fit.
Shifting from clean energy to more traditional energy sectors like pipelines, we're seeing a lot of creative deals being put together, particularly in Indigenous nations' ownership of midstream assets, such as pipelines. This trend is evident in BC, Alberta, and even at a national level, where Indigenous acquisition of pipeline infrastructure is gaining traction. Some pipeline companies have embraced this by creating innovative ownership structures that promote economic reconciliation. These deals ensure that impacted nations share the benefits and have a say in governance, bringing Indigenous perspectives on environmental issues, cumulative effects, and socio-cultural impacts into corporate decision-making.
One notable trend is incorporating Indigenous partners and owners into these projects and using corporate governance structures that include Indigenous knowledge and concerns, often overlooked in regulatory processes. This ensures that governance has the correct teeth to enforce these perspectives.
For instance, in the oil and gas sector, we were heavily involved in the Haisla Nation's development of the Cedar LNG project. This project is a significant example, as it involves an LNG facility built on Indigenous lands with substantial ownership and control by the Haisla Nation. This approach ticks many boxes regarding the ESG agenda, ensuring Indigenous communities have meaningful control and decision-making power in projects that affect them.
I understand how meaningful Indigenous engagement and ownership of projects fit into some of the broader themes of ESG, particularly on the social and governance sides. However, companies committed to this work should separate these two areas.
The Truth and Reconciliation Commission’s calls to action say Canadians and Canadian businesses must recognize that advancing reconciliation, including economic reconciliation, is a legal and moral obligation. The calls to action include specific directives for Canadian companies, not just the government.
When I advise new entrants into the Canadian business world or existing companies, I emphasize the importance of treating ESG goals and Truth and Reconciliation efforts as parallel but distinct endeavours. Companies should determine how they can advance reconciliation in alignment with the calls to action based on their unique context. I encourage them to develop a specific Truth and Reconciliation Action Plan, measuring its progress separately from their ESG goals. While there may be overlap, it's important not to conflate the two to the detriment of the reconciliation agenda.
When discussing how ESG, Indigenous engagement, and Indigenous project ownership intersect, it's crucial to be clear about what you're doing for reconciliation as distinct from ESG. If these efforts are too heavily combined, there's a risk that the reconciliation side may be diluted. Moreover, some assumptions about what benefits Indigenous communities might be confused with what's effective for ESG, which could undermine the goals of reconciliation.
There's often a divide between the law and what's considered best practice on the ground. In Canada, we're on a path where, increasingly, nothing of significant scale or importance will be built without the consent and meaningful involvement of Indigenous organizations. This direction has been set by a series of legal precedents, starting from early case law and moving through significant rulings like Delgamuukw, Haida, and Tsilhqot’in, which have progressively reinforced the need for consultation, accommodation, and now, consent. These legal developments have laid the groundwork for where we're headed.
On top of this, the legislative implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which includes principles like free, prior, and informed consent, has been enshrined in laws both federally and in BC. This further solidifies our movement toward a consent-based approach.
From a legal standpoint, companies operating in Canada must meet a baseline, but this baseline often falls short of the consent standard. If a company builds a project just to meet this legal minimum, it might be okay in the short term but could face significant challenges as the legal and social landscape evolves.
On the practical side, companies need to think beyond the bare minimum. If you're developing a long-term project in Canada and want sustainable security of tenure, you should focus on creating relationships and frameworks that ensure long-term consent. This involves aligning objectives and benefits, such as Indigenous ownership, and incorporating Indigenous perspectives and knowledge into governance frameworks. Additionally, it's essential to think about dispute resolution processes that are respected by the Indigenous nations involved, possibly by integrating Indigenous-based mechanisms.
Moreover, Canada's recognition of Indigenous legal orders as constitutionally supported laws is growing. Companies should prepare to support the implementation of these Indigenous legal orders, mainly if they apply to the lands on which they operate. In summary, companies must consider the legal requirements and the practical, long-term strategies to build and maintain successful, respectful relationships with Indigenous communities.
I see two significant opportunities here, each with several vital components. The first opportunity is to approach Indigenous nations as true partners, moving beyond the "partnership light" models we've seen in the past. Traditionally, partnerships between industry, government, and Indigenous nations have been somewhat superficial. But looking forward, there's a real chance to deepen these collaborations by fully recognizing Indigenous partners' value, particularly in finance, governance, and knowledge.
For instance, many Indigenous nations now have access to capital and funding equal to or even better than non-Indigenous partners. We can create more robust partnerships by involving them in financial decisions. Additionally, Indigenous knowledge is a significant asset, especially in major projects. Better incorporation of this knowledge and Indigenous governance structures into project frameworks will help establish a lasting ecosystem of consent. So, the first opportunity is about shifting towards true, open partnerships where all contributions are valued and utilized.
The second opportunity involves recognizing Indigenous nations as land and resource owners and understanding what this means for specific projects or enterprises. A growing trend, particularly in large projects, is the rise of Indigenous-led impact assessments and project reviews, often supported by Indigenous environmental laws and legal orders. For example, several critical projects in BC, like Woodfibre LNG, have undergone Indigenous-led impact assessments.
As a project developer or industry player, it is essential to view these assessments not as obstacles but as valuable tools that can help ensure the project's long-term success. Engaging with Indigenous nations early on to understand how they wish to review the project and supporting the development of their impact assessments and legal frameworks can be incredibly beneficial. This approach not only aids in revitalizing Indigenous laws and jurisdictions but also ensures that the project is built in a sustainable and respectful way of the land and resources, ultimately leading to more enduring success.
In summary, the first opportunity concerns fostering genuine, all-encompassing partnerships with Indigenous nations, and the second involves embracing Indigenous-led impact assessments as a means of securing the long-term viability and success of projects.
