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 Shawn A-in-chut Atleo 2014

Overview … 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 Shawn A-in-chut Atleo 2014

Context 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 Shawn A-in-chut Atleo 2014

The evolving idea of CSR 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 … What is Corporate Social Responsibility (CSR)? Government of Canada defines as the voluntary activities undertaken by a company to operate in an economic, social and environmentally sustainable manner. The Government of Canada understands that responsible corporate behaviour by Canadian companies operating internationally not only enhances their chances for business success but can also contribute to broad-based economic benefits for the countries in which they are active and for Canada. Investing and operating responsibly also plays an important role in promoting Canadian values internationally and contributes to the sustainable development of communities. The Government of Canada is therefore committed to promoting responsible business practices; and expects and encourages Canadian companies working internationally to respect all applicable laws and international standards, to operate transparently and in consultation with host governments and local communities, and to conduct their activities in a socially and environmentally responsible manner. Shawn A-in-chut Atleo 2014

CSR emphasizes economic, environmental and social sustainability CSR becomes common buzz word and go-to policy for businesses – many variations on a basic theme. Could have provided you with hundreds of pretty diagrams here as almost every corporate entity has undergone such an exercise. We can boil these down to some common features: sustainability without impacting profit; human and labour rights standards while minimizing risk and becoming more involved in the community. So we see a linking of corporate philanthropy to broader goals and greater emphasis of sustainability as part of corporate communications Shawn A-in-chut Atleo 2014

CSR becomes essential but remains voluntary and varied CSR seen as essential business practice however …. What does it really add up to ? Is their an impact? … do corporations really care? Or is this all window dressing …. Shawn A-in-chut Atleo 2014

What have we learned? 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: need to consider ACTIVE role for state need for monitoring and understanding of inter-related aspects. The new definition for the EU expands the scope of CSR from a purely voluntary context to one of active responsibility for all the impacts a company has, without discerning between voluntary and mandatory activities, while increasing positive and reducing negative effects on society. Significantly, this aligns CSR more closely with core business activities and therefore increases its relevance for enterprises. If taken seriously, it also raises the stakes for political and other actors to follow and assess companies’ CSR engagement through a different lens, i.e., the range of impacts it has on society The corporate sector is in many ways leading the way to these new understandings. In recent studies, the vast majority of companies perceive CSR as essential. “CSR is seen as a “must have” for companies - CSR is not only relevant for large companies but for SMEs as well. For many companies CSR is regarded as part of their license to operate – something they must do instead of something they do to create competitive advantage. “ Still even though CSR is commonly seen as a “must have”, this does not mean that a company’s CSR activities integrate all of the trends, issues and events (“TIEs”) which have the greatest importance and materiality to core business. The EU IMPACT study invited companies to indicate whether they saw a set of 48 sector-specific issues as having relevance to them. The major guiding principle for the issue selection was that there had to be European policy goals for the respective issues and that they had to be relevant for the respective sector. In addition there is widespread confusion between performance and impact and there is no clear and consistent understanding of what ‘impacts for society’ are. There are no established and accepted methodologies and tools to measure and understand pathways of impacts for society from companies or their CSR/ sustainability activities. This means it is not possible to trace the relationship between strategic decisions about CSR policies and activities, how they translate into outputs (programmes and policies) to which resources are allocated, and then become outcomes that create impacts. Thus, impacts of companies for society remain unclear and hidden from public scrutiny and policy. We can conclude that legal regulation is not a driver for the general engagement of companies with CSR. But, legal regulation is an important driver for some issues. As a consequence, strong future legislation & CSR can coexist and it even seems that only regulation can raise awareness of companies regarding some issues which are then being tackled with (additional) voluntary action. Shawn A-in-chut Atleo 2014

UN guiding principles: business and human rights When we look broadly at international frameworks – new information and requirements come to light which are also relevant and important to appreciate context and responsibilities. This also begins to bring in Indigenous rights as a key dimension. UN Guiding Principles provide further structure and guidance – PROTECT, RESPECT, REMEDY framework (known as the Ruggie principles – also commented on extensively by Anaya) to address social and legal human rights risk using a structured due diligence system. Guiding Principles are not legally binding, but they are written like legislation. System built on three legal concepts: Because of their widespread acceptance, failure to align CSR strategy with Guiding Principles also exposes company to significant legal risk. http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf 1. States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication. 2. States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations. 3. In meeting their duty to protect, States should: (a) Enforce laws that are aimed at, or have the effect of, requiring business enterprises to respect human rights, and periodically to assess the adequacy of such laws and address any gaps; (b) Ensure that other laws and policies do not constrain but enable business respect for human rights; (c) Provide effective guidance to business enterprises on how to respect human rights throughout their operations; (d) Encourage and require, business to communicate how they address their human rights impacts Shawn A-in-chut Atleo 2014

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.

UNDRIP: free, prior and informed consent (FPIC) 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. Shawn A-in-chut Atleo 2014

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.

Analysis 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 Shawn A-in-chut Atleo 2014

CSR: Domestic legal environment 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) Shawn A-in-chut Atleo 2014

Key relevant Cdn legal concepts 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) Shawn A-in-chut Atleo 2014

Aboriginal rights and title 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.” The SCC’s decision essentially requires that the Crown and industry meaningfully engage with Aboriginal title holders when proposing to make decisions or conduct business on their territories. This engagement can no longer be limited to “small spots” but must be achieved with a view to tangibly addressing the incidents of title affirmed by this case; namely, the right of enjoyment and occupancy of title land; the right to possess title land; the right to economic benefits of title land; and the right to pro-actively use and manage title land. The Court emphasized that the Crown and industry would be well advised to “avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.” Shawn A-in-chut Atleo 2014

Beyond a ‘game-changer’: appreciating Cdn legal environment 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 Shawn A-in-chut Atleo 2014

Framing the path forward – the ‘regenerative economy’ “Heshook-ish tsawalk” highly instructive and illustrative principle sets the course for innovative new processes and raises our expectations of what is possible   Shawn A-in-chut Atleo 2014

Challenge and Opportunity Beyond corporate social responsibility; beyond the legal requirements; beyond the need for investment in jobs and opportunities for our communities… Consider approaches that: Build awareness and understanding of one another – culturally, spiritually and economically Design and implement new systems across this land that: support and enable recognize and implement rights and responsibilities over the long-term. Shawn A-in-chut Atleo 2014

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 Shawn A-in-chut Atleo 2014

Relationships key in new emerging REGENERATIVE economy INNOVATION INDIGENIZE by design UNDERSTAND and RECOGNIZE values and interests EQUIP and EMPOWER with capacity DESIGN new SYSTEMS that integrate and connect SHARE DECISION-MAKING and ACCOUNTABILITY TRANSFORMATION REGENERATIVE ECONOMY UNDERSTAND and RECOGNIZE: Appreciating shared and respective economic, environmental and spiritual values and interests Starting from place of recognition of jurisdiction and overlapping interests EQUIP and EMPOWER NATIONS and COMMUNITIES through… • Capacity support • Fiscal measures, for example loan guarantees and removing barriers to investments. • Projects that focus on economic, social, community housing, infrastructure, and equity participation. • Fixed rate loans soon to be issued with the proceeds from the historic first “First Nations Finance Authority Bond.” • First Nations access to capital markets worth $212 trillion globally, with excess of $1 trillion in the bond markets in Canada, and. First Nations “own revenues” and governance. 3. DESIGN AND BUILD NEW SYSTEMS that enables integrated decision-making and monitoring of impacts and outcomes. As opposed to review of single projects, move to overall oversight, planning, management and benefits of entire environmental and economic systems across regions. This is about mutual learning and understanding. And it is about building mutual trust. This requires… • Traditional environmental knowledge and principles. • Placing limitations on the capacity of the natural environment to support us. • Addressing climate change and other environmental pressures • 35 years ago - long before it was uttered in mainstream society – I distinctly recall my late grandfather telling me of changes to the environment, the warming of the oceans and the effect on the salmon and the pattern changes he observed. 4. SHARED DECISION-MAKING and ACCOUNTABILITY – Recognizing that equity, including achieving resource revenue sharing and empowerment, are key aspects of success now. Decision-making and management must be inclusive and accountable to all citizens affected. Shawn A-in-chut Atleo 2014

A final thought 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  Shawn A-in-chut Atleo 2014