Increasingly First Nations are becoming a bigger force in our economy. One of the main factors that contribute to this trend, in my view, is the recognition by many First Nations that economic activity is the most direct path to self-determination and self-sufficiency. As the hope of quickly resolving the myriad of outstanding land claims in British Columbia through the treaty process has all but disappeared, many First Nations are pursuing economic opportunities and generating their own source revenues, as a means to becoming economically independent, self-governing nations.
First Nation-Private Sector Partnerships – A Win-Win
One of the ways in which First Nations participate in business is through partnerships with private companies. They often do so with the goal of benefitting from the experience and connections that these companies have that First Nations may not yet have developed. At the same time, many in the private sector are coming to the realization that as Aboriginal rights and title become more defined through court cases, and political reality shifts, partnerships with First Nations can be an effective method of moving forward with a new development or business activity where there is a legal requirement for government to consult with and accommodate First Nations’ interests. When structured properly, partnerships between private sector and First Nations can be beneficial for both partners, as well as the local community.
Assets that Private Sector and First Nations Bring to Partnerships
For any partnership to be successful, it is important for each party to understand and appreciate, at the outset, the assets that it possesses, so that it knows what type of assets it requires from its partner. In the context of First Nation-private sector partnerships, assets that First Nations will typically look to their private sector partners for include: financial resources, management skills and experience and industry connections and knowledge. The assets that First Nations have to contribute are generally unique and may include: political capital (such as access to senior government decision makers), a young, local labour force, control over or access to land, water or other natural resources and cultural content for branding and marketing purposes. While financial resources, skills and experience that private sector may bring to the table are important, the unique capital that First Nations can bring to partnerships may be determinative of the success of the business.
Tips in Successfully Forging and Maintaining Partnerships with First Nations
A First Nation-private sector partnership is, in most cases, a partnership of two cultures. There are negotiation principles that private sector can adhere to, and common goals and objectives among First Nations that private sector should be aware of, to increase the likelihood that they will be successful in forging and maintaining their partnerships with First Nations
- Get to Know the First Nation
A proponent should invest the time to find out the values and goals that are important to the leadership and community of the First Nation with whom it wishes to engage. While these values and goals do not need to mirror those of the proponent, there must be sufficient commonality between the parties for the partnership to be successful.
- Start with a Non-Binding Memorandum (“MOU”)
A non-binding MOU can be an effective and relatively inexpensive way for the parties to outline their key expectations and ensure that there is concurrence on the major items, without getting bogged down in “legalese”.
- Start Negotiating at a Fair Point
If a First Nation does not feel that it is being treated fairly from the beginning, negotiations could end quickly.
- Know Who to Contact
Find out the First Nation’s protocol for the first point of contact. Some will require the first contact for all business proposals be with the Chief and Council; for others, the first contact may be with the First Nation Administrator or the CEO of their economic development corporation. When a First Nation has both an elected Chief and Council and Hereditary Chiefs, their protocol may require that any final agreement must have the support of both.
- Understand the Importance of Employment, Contracting and Training Opportunities
Unemployment is a primary concern for many First Nations. Providing training, employment and contracting opportunities to First Nation members and businesses has become a common element in partnership agreements. Bringing a concrete First Nations employment and procurement strategy to the negotiation table would be a great selling point for a proponent.
- Promote a Governance Model that has Representation from Each Partner
Most First Nations will desire representation on the management board, even if they hold a small equity interest in the partnership.
- Stay Connected
Once the partnership is formed, maintaining the relationship with the First Nations partner is just as critical as it was in the negotiation stage. It is important that a communication strategy is put in place to ensure that the partnership provides regular reporting to the First Nation leadership and the community at large.
Private sector-First Nations partnerships are on the increase, as they can generate business opportunities that would not otherwise be available to either party acting on its own. For such partnerships to be successful, they require a carefully considered approach to ensure that both partners’ cultures and values are embodied in the relationship.
Tags: Article, Jean Yuen, Aboriginal Law