Law and Indigenous resource development

When it comes to natural resource development, governments and companies have traditionally held most of the power, but according to Ibironke Odumosu-Ayanu, communities around the world are demanding—and sometimes getting—a seat at the table.

By Michael Robin

"It's becoming more prevalent wherever extractive companies go," said Odumosu-Ayanu, an associate professor in the College of Law. "Often they have the legal license to operate from the government but some also seek a social license to operate. Some companies understand that having a legal piece of paper alone might not necessarily get them what they want."

Odumosu-Ayanu, who grew up in Lagos, Nigeria, one of the world's largest cities, specializes in the legal frame­works surrounding resource extraction. She became inter­ested in oil and gas law while completing her first law degree.

"Of course in Nigeria there is an enormous amount of oil and gas and it's always in the news—that's how the govern­ment makes most of its money. A lot of us (law students) were attracted to it," she said. "That was the attraction to Calgary as well."

Odumosu-Ayanu completed her master's degree at the Univer­sity of Calgary and PhD at the University of British Columbia before joining the U of S in 2008.

Of particular interest to her is how resource development can evolve from a government-com­pany dialogue to a three-way discussion that includes people whose communities would be affected by development. Her work is funded through the Social Sciences and Humanities Research Council of Canada. Communities have used civil disobedience to shut down oper­ations, preventing the company or their government partners from making money. But a powerful tool, said Odumo­su-Ayanu, is communications and the power of the internet.

"It's the power to name and to shame," she said. "We can say, ‘this is what this company is doing here and it's not right.' It becomes news everywhere and the company doesn't want that."

This power, along with other factors, has helped bring companies and governments to the table to work with communities and sign agreements with them. Odumosu-Ayanu is inter­ested in "community development agreements" in various West African countries such as Ghana, where groups of communities get together with a company to negotiate what they will receive in return for their co-operation and endorsement.

This can include infrastruc­ture such as clinics and schools, as well as a commitment to employ local people—but it is difficult to tell, seeing as many of the agreements are highly confi­dential. She is also interested in other types of contracts that may involve communities affected by natural resource extraction.

With respect to agree­ments, Canada's Indigenous peoples have an advantage over their African counterparts, she explained. In the past few decades, the rights of Indigenous peoples have increasingly been recognized under international law.

Odumosu-Ayanu explained that some of the people of the oil-rich Niger Delta argue they are Indigenous people whose rights should be recognized accordingly. The Nigerian government has consistently refused, arguing in part that all Nigerians are Indigenous.

In contrast, Canada's Indigenous people were clearly the first inhabi­tants of North America and recognized as such by such legal documents as treaties with various First Nations across the country.

"I think Indigenous peoples in Canada are a lot more active in terms of their relationship with the law," Odumosu-Ayanu said.

This has led to some success in the courts as indigenous peoples claim their legal rights such as the duty to consult affirmed by the Supreme Court of Canada.

"What ‘consultation' means and involves of course, people could debate for 25 years," Odumosu-Ayanu said.

The power of such a broadly applied legal tool is perhaps best reflected in how hard a similar effort in Nigeria is being resisted. She explained that many cases in that country involve debates about compen­sation—a landowner objects to a company's activity and takes them to court. But one such case, which has been argued for a number of years, applies to constitutionality. This means the final ruling will apply to all Nigeria.

"They're asking for declar­ative statements regarding the constitutionality of particular laws," Odumosu-Ayanu said. "Those are the kind of things we need, as it would affect all projects across the board."

One of the sticking points, as she sees it, is the issue of free, prior and informed consent.

"For some, it means a veto, or, if a community doesn't consent, the project cannot proceed, or informed deci­sion-making" she said. "Others would say, ‘no, it's a dialogue, a conversation.' I think govern­ments would be much happier with that."

In the end, governments and companies are recognizing that community stakeholders must have a seat at the table for resource development to be successful.

"Some companies are beginning to take these things more seriously," Odumo­su-Ayanu said. "Some govern­ments are starting to take them more seriously. Is it perfect? No. But at least all the major players are beginning to turn their attention to these matters and that's a positive development."