- by Stacey Jessiman -
Jessiman Law helps Indigenous communities and their business partners negotiate agreements that advance economic reconciliation by creating productive business relationships based on, among other things, mutual respect, clarity around financial terms and protection/use of Indigenous intellectual property and heritage, and innovative provisions relating to capacity building, cultural initiatives and dispute resolution.
Below are some tips for clients and practitioners on drafting partnership agreements to advance economic reconciliation and help prevent expensive disputes.
What does “economic reconciliation” mean?
Economic reconciliation involves reconnecting Indigenous communities -- whose economies colonialism worked to segregate and destroy -- with local, provincial and national economies[1]. Reconciliation Canada defines economic reconciliation as creating “meaningful partnerships and mutually beneficial opportunities based on a holistic, values-driven approach to attaining community economic prosperity.[2]”
The words “holistic” and “values-driven” are key. Indigenous cultures are holistic in the way they view economy as being interconnected with land, resources, politics, ceremony and spirituality. And, while profits are a priority to any business, the shareholder of an Indigenous corporation is the community itself, not a shareholder that will disappear when it makes sense to cash out. So, the values and goals in an Indigenous partnership involve not only maximizing profits but also economic development that makes communities stronger long-term.
The Truth and Reconciliation Commission of Canada (the “TRC”), in its Final Report, set forth 10 principles to guide reconciliation efforts. Principle 9 is especially relevant to economic reconciliation. It states that reconciliation requires trust building, joint leadership, accountability, transparency and a substantial investment of resources[3].
How can you honour and incorporate these aspects of Principle 9 into your business partnership agreements?
(1) First, focus early on Relationship Building. Industry partners should spend time in the Indigenous partner’s community learning about its history and culture, and both partners should invest time in understanding each other’s values, goals and limitations. Showing respect for a community’s values and cultural heritage can be achieved in part by describing up front in your agreement the values guiding the Indigenous partner and by using key terms and concepts from both the Indigenous language and English. These actions create the basis for a more productive negotiation and long-term relationship.
(2) Joint leadership. Indigenous partners bring a tremendous wealth of knowledge and experience as well as valuable approaches to partnerships. Structure your agreements to benefit from that and show mutual respect. Look for ways to share decision-making, including on boards of directors and joint committees, and incorporate Indigenous approaches to resolving disputes, managing land and resources, and more.
(3) Creating accountability and transparency is key, especially regarding financial aspects (e.g., budgeting, reporting, and the timing/method of profit distribution) and the partners’ roles and responsibilities with respect to implementing the agreement and managing the business. This last aspect is especially important in a limited partnership, as a limited partner’s efforts to control/manage the business can lead to a loss of its liability protection. If third party contractors will be involved in implementing aspects of the agreement, include provisions that help ensure that will happen. Make sure you have a clear understanding in writing about these issues -- in your benefits agreement, partnership agreement and/or in a side agreement such as a governance and fiscal agreement. Jessiman Law can help you draft these agreements.
Ensuring accountability and transparency with respect to the protection and use of Indigenous intellectual property is also important. How can you achieve this?
Be clear about how traditional knowledge can be used: by whom, for how long, and under what conditions. Consider attaching a model license agreement as an Appendix to your agreement. Jessiman Law can draft/review this kind of agreement.
If you are developing or digging on traditional territory, agree to follow the Indigenous community’s law or policy setting out procedures to follow when ancestral remains and archaeological material are found (which can also be attached as an Appendix).
Ensure that your community has a comprehensive and up-to-date heritage law or policy. Jessiman Law can help you draft a new policy, or review your existing one.
(4) The areas in which industry partners make a substantial investment of resources will depend partly on the kind of project, but generally, investment by industry partners in training programs and capacity building not only advances economic reconciliation but also makes good sense because it builds a local workforce for the business. Providing jobs and contracting opportunities is another important means of contributing to a community’s economic and social wellbeing. Investing in cultural programs and other community initiatives similarly can contribute to a healthier community and workforce. Including concrete provisions on cultural training and sharing also makes for a stronger partnership relationship. Jessiman Law can help you draft innovative provisions relating to these subjects that foster productive business relationships and a strong local economy.
Last but not least, put your understanding in writing! If you are partnering with an Indigenous community, make sure your verbal promises are formalized in a written agreement.
And, both parties should hire their own lawyers to draft, negotiate and/or review the documents that set up your business before they get signed. Jessiman Law can make sure your agreements give you what you are expecting.
© 2020 Stacey R. Jessiman
[1] Based on a definition provided by Qwastanaya (Maynard) Harry, founder of Indigenous Insight, in an email to me dated February 22, 2019. [2] http://reconciliationcanada.ca/programs-initiatives/economic-reconciliation/ [3] https://ricochet.media/en/844/10-principles-for-truth-and-reconciliation