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Corporate Social Responsibility in context:

REQUIREMENTS AND OPPORTUNITIES FOR THE EMERGENCE OF THE REGENERATIVE ECONOMY

Shawn A-in-chut Atleo

October 2014

MCGILL UNIVERSITY

INTERNATIONAL DEVELOPMENT:

BRIDGING THE WORLDS OF THEORY, POLICY AND PRACTICE

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What – social license, corporate social responsibility (CSR) free, prior and informed consent (FPIC) and

consultation and accommodation How - through an indigenous world view and

economic theory Why – recognition essential for new engagement,

development and management strategies for shared social, environmental and economic advantage

Overview …

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CSR, social license, FPIC have been seen as barriers or complexities to development

Understanding complexities, and viewing through a new lens, we see new opportunity and new approaches requiring active engagement of all

Where does this take us? Modern interpretation of ancient economic theory

grounded in indigenous world view; the emergence of the reciprocal or regenerative economy

Context

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Simple economic theory – emphasizing market response (Efficient Markets Hypothesis - the business of business was business and that governance

was the business of governments but with as little interference as possible.) as opposed to government action or regulation dominated most of last century

Social License referring to level of acceptance or approval of local communities for particular corporate activities undergoes increased focus and relevance

Social License transforms into more formal requirements and practices broadly referred to as CSR

Begins to nudge at long held economic theory …

The evolving idea of CSR

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CSR emphasizes economic, environmental and social sustainability

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CSR becomes essential but remains voluntary and varied

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Recent studies now yield much information that debunk not just the early definitions of CSR but prevailing economic theories themselves.

European Union Impact study: “despite clear direction and an apparent embracing of CSR principles, the

aggregate of CSR activities of European companies had not made a measurable positive contribution to achieving the economic, social and environmental goals of the European Union”

“there were no widely applied or clear tools and methods which provide valid and representative assessments of the impacts of CSR for society”.

Two outcomes:

1. need to consider ACTIVE role for state

2. need for MONITORING and understanding of INTER-RELATED aspects.

What have we learned?

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UN guiding principles: business and human rights

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ILO Convention No. 169

International law first contemplated the right of indigenous peoples to give free, prior informed consent (FPIC).

It establishes the right of indigenous peoples to be consulted regarding development project.

Elements of good faith, decision making through indigenous peoples’ own methodologies are essential to free, prior and informed consent.

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States to consult with indigenous peoples through their representative institutions to gain their FPIC “prior to the approval of any project affecting their lands or territories and other resources.

FPIC applies particularly in connection with the development, utilization or exploitation of mineral, water or other resources (32.2).

The principle of FPIC encompasses not only procedures, but also links with indigenous peoples’ right to self-determination, treaties and indigenous peoples’ rights to lands, territories and natural resources.

Procedures concerning FPIC should recognize indigenous customary law where relevant.

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UNDRIP: free, prior and informed consent (FPIC)

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Inter-American Development Bank

Recognize the customary rights of Indigenous peoples and their informed consent.

Elements of a consent-based approach include capacity for negotiation, effective safeguards against adverse effects and balancing of needs and interest of Indigenous peoples.

Support participatory approaches and required consent on projects that have adverse impacts.

IADB also encouraged co-management or self-management of projects.

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International frameworks add much to consider and begin pointing to different role for: States – legal requirements and international

standards Corporations – active role in human rights and

environmental protection And finally – systems innovation required to

effectively respond

Analysis

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Five key SCC Consultation Cases Sparrow (Infringement) Haida Nation & Taku River (asserted rights) Mikisew Cree First Nation (taking up of

lands) Tsilhqot'in (Aboriginal title) Ahousaht (commercial fishing rights)

CSR: Domestic legal environment

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Plans must treat aboriginal peoples in a way ensuring that their rights are taken seriously.” (Sparrow)

Aboriginal rights have priority over the exploitation of the resource by other users.” (Gladstone)

The government must demonstrate the actual allocation of the resource reflect the prior interest' of the holders of aboriginal title in the land. (Delgamuukw)

Aboriginal peoples to be provided with all necessary information in a timely manner and have an opportunity to express their interests, seriously consider concerns and, wherever possible, integrate it into the proposed plan of action.” (Mikisew)

“It is corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate.” (Haida)

Key relevant Cdn legal concepts

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Aboriginal peoples have rights to fish in their traditional territories and sell that fish into the commercial marketplace (Ahousaht)

Tsilhqot'in : Aboriginal title holders have the “right to the benefits associated with the land – to

use it, enjoy it and profit from its economic development” Aboriginal title confers possession and ownership rights including:

the right to decide how the land will be used; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.

“governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”

“the right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the title holders.”

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Aboriginal rights and title

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Beyond a game –changer: new legal decisions change the nature of the game, the field of play and all the rules

After over 40 major court case wins for First Nations, court has been chipping away at old paradigms

Opportunity and requirement now: need to stop showing up expecting to play old game with

outdated and irrelevant systems More than just eliminating the spinnorama outta overtime

Beyond a ‘game-changer’: appreciating Cdn legal environment

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“Heshook-ish tsawalk”

highly instructive and illustrative principle

sets the course for innovative new processes and raises our expectations of what is possible

 

Framing the path forward – the ‘regenerative economy’

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Beyond corporate social responsibility; beyond the legal requirements; beyond the need for investment in jobs and opportunities for our

communities…

Consider approaches that:

1. Build awareness and understanding of one another – culturally, spiritually and economically

2. Design and implement new systems across this land that: support and enable recognize and implement rights and responsibilities over the long-term.

Challenge and Opportunity

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Analysis

Considering CSR experience and that it is MORE not LESS important and requires far more commitment through monitoring and state involvement

Considering strengthened legal principles internationally

Considering new realities within Canada legal framework

Canada uniquely placed to play leadership role internationally

Ultimately - becomes not an option but the only (new) game in town to get business done

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INNOVATION INDIGENIZE by design

1. UNDERSTAND and RECOGNIZE values and interests

2. EQUIP and EMPOWER with capacity

3. DESIGN new SYSTEMS that integrate and connect

4. SHARE DECISION-MAKING and ACCOUNTABILITY

TRANSFORMATION REGENERATIVE ECONOMY

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Relationships key in new emerging REGENERATIVE economy

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The quiet hub of the new movement - its heart and soul - is indigenous culture.  The acknowledgement of aboriginal cultures is not a romantic gesture or

wistful plea, nor does it value Neolithic cultures above modern ones, or native spiritual practices above other sacred traditions.  Just as a wheel cannot turn

without a stationary hub, the movement reaches back to the deep and still roots of our collective history for its axel.

Paul Hawken, The Ecology of Commerce, 

Natural Capitalism 

A final thought