iba community toolkit · by ginger gibson and ciaran o’faircheallaigh march 2010 commissioned by...

By Ginger Gibson

and Ciaran O’Faircheallaigh

March 2010

Commissioned by the Walter & Duncan Gordon Foundation

IBA COMMUNITY TOOLKITNegotiation and Implementation of Impact and Benefit Agreements

IBA COMMUNITY TOOLKIT Negotiation and Implementation of Impact and Benefi t Agreements

by Ginger Gibson and Ciaran O’Faircheallaigh

Commissioned by the Walter & Duncan Gordon Foundation

March 2010

The contents of this toolkit are entirely the responsibility of the authors and do not necessarily refl ect the view or opinions of the Gordon Foundation or the individuals or organizations who contributed to its development.

This toolkit provides general information on negotiation of impact and benefi t agreements. It should not be construed as legal advice to be applied to a specifi c situation. As the law differs in each jurisdiction and may be interpreted or applied differently depending on a specifi c situation, the information in this toolkit should not be used as a substitute for the advice of a lawyer.

This report is available under limited copyright protection. You may download, distribute, photocopy, cite or excerpt this document provided it is properly and fully credited and not used for commercial purposes. For more information, visitwww.creativecommons.org

Primary photography by James Stauch, with thanks to the communities of Cape Dorset, Nunavut, Behchoko and Fort Good Hope, NWT and Old Crow and Teslin, Yukon.

Copyedit and design: Nadene Rehnby and Pete Tuepah, www.handsonpublications.com

© Ginger Gibson, Ciaran O’Faircheallaigh and the Gordon Foundation

This toolkit can be downloaded free of charge at www.ibacommunitytoolkit.ca

11 Church Street, Ste. 400Toronto, ON M5E 1W1Tel: 416-601-4776 | Fax: [email protected] | www.gordonfn.org

ContentsAbout the Authors .................................................................................................. 8

Acknowledgements ................................................................................................ 8

SECTION 1: INTRODUCTION ................................................................... 9

Before You Start: Making the Decision to Negotiate .................... 11

Negotiation is Not Consent ........................................................... 11

Information is Power ...................................................................... 11

A Focus on Process as Well as Outcome ......................................12

The Importance of Forming Networks .......................................... 13

Toolkit Research and Development ............................................... 13

How to Use this Toolkit ..................................................................14

Structure of the Toolkit ...................................................................14

SECTION 2: ANALYZING THE PROJECT AND THE WIDER ENVIRONMENT ................................... 15

Introduction ...........................................................................................................16

The Mine Life Cycle ............................................................................................... 17

Location and Investment Decision ............................................................. 17

Early Exploration ..........................................................................................18

Advanced Exploration ..................................................................................19

Construction ................................................................................................ 22

Operations .................................................................................................. 22

Closure and Reclamation .............................................................................23

Indigenous Rights: The International Context..................................................... 24

Indigenous Rights: The Canadian Context .......................................................... 29

Duty to Consult ........................................................................................... 30

Duty to Accommodate ................................................................................. 31

Historic and Modern Treaties ...................................................................... 31

Modern Land Claim Agreements ................................................................32

Legal and Policy Levers for IBAs ...........................................................................34

Canadian Environmental Approval and Regulation .............................................36

EIA Requirements ........................................................................................37

Levels of Environmental Assessment .........................................................39

Minimizing Impacts and Maximizing Benefits ...........................................41

Timing of the Negotiation of IBAs and EIAs ........................................................43

Timing the EIA and IBA: Three Scenarios .................................................. 44

The Wider Implications of Agreement Making ................................................... 47

Access to the Courts and Government Regulators ................................... 47

Freedom to Pursue Political Strategies ...................................................... 48

Implications for Broader Agreements and Land Claims with the State ... 49

Freedom to Demand Corporate Responsibility ..........................................50

Community Goals, Planning and Politics ............................................................. 51

Unity Within Communities .......................................................................... 51

Unity Between Aboriginal Nations .............................................................. 53

Notes for Section 2 ................................................................................................ 55

PAGE 4 IBA COMMUNITY TOOLKIT

SECTION 3: PREPARING FOR NEGOTIATIONS .....................................57

Introduction ...........................................................................................................58

Establish a Structure for Negotiations .................................................................59

Roles and Structures for Negotiations .......................................................60

Negotiating Team Composition ................................................................. 62

Negotiating Team Selection Process ...........................................................63

Roles of Key People on the Negotiating Team ........................................... 64

Roles of Expects on the Negotiating Team .................................................65

Develop a Plan for Gathering and Managing Information ................................. 68

Consider Precursor Agreements ...........................................................................78

Exploration Agreements ..............................................................................78

Memorandums of Understanding (MoUs) ................................................78

Corporate Confidentiality Clauses .............................................................. 79

Develop a Budget ................................................................................................. 80

Gather Information About the Project, Commodity and Company .....................83

Establish Baseline Conditions in the Socio-economic and Cultural Environment .................................................................................... 84

Impact Assessment Questions .................................................................. 86

Potential Socio-Economic Impacts .............................................................87

Impacts During Advanced Exploration ...................................................... 88

Impacts During Construction ..................................................................... 88

Impacts During Operations ....................................................................... 89

Impacts During Closure ............................................................................. 89

Mitigating Impacts ......................................................................................90

Develop a Communications Strategy .................................................................. 92

Assess and Improve the Bargaining Position ..................................................... 99

Summary of Section 3 ........................................................................................ 104

Notes for Section 3 .............................................................................................. 105

The toolkit can be

downloaded, free of charge,

in whole or by chapter, at

www.ibacommunitytoolkit.ca

The website also provides a

central location for updated

links to further resources.

IBA COMMUNITY TOOLKIT PAGE 5

SECTION 4: CONDUCTING NEGOTIATIONS AND REACHING AGREEMENTS .....................................107

Introduction .........................................................................................................108

Negotiation Processes and Procedures............................................................. 109

Identify Options and Provisions for Negotiated Agreements ........................... 121

Legal Provisions ......................................................................................... 121

Substantive Issues and Provisions ............................................................130

Communication .................................................................................. 132

Aboriginal and Public Access to Mining Tenures .............................. 133

Mining Payments ................................................................................ 134

Assessing Risk Tolerance for a Financial Model ................................ 139

Mining Payment Utilization ............................................................... 141

Employment ........................................................................................144

Union Relationships ........................................................................... 154

Business Development ....................................................................... 156

Access to and Transfer of Infrastructure and Facilities ..................... 159

Environmental Management ............................................................. 160

Culture and Cultural Heritage ............................................................164

Harvester Compensation and Traditional Use ..................................166

Social Measures ..................................................................................167

Establish Agreements that Reflect Community Goals .......................................168

Returning to the Negotiating Table ..................................................................... 171

Signing and Launching an Agreement ............................................................... 172

Summary of Section 4 ......................................................................................... 173

Notes for Section 4 ..............................................................................................174


SECTION 5: IMPLEMENTING AGREEMENTS AND MAINTAINING RELATIONSHIPS ........................... 177

Introduction ......................................................................................................... 178

Implementing Agreements .................................................................................179

Factors Internal to the Agreement.............................................................180

Clear Goals ..........................................................................................180

Institutional Arrangements for Implementation ...............................180

Clear Commitments and Responsibilities .........................................182

Adequacy of Funds and Other Resources for Implementation......... 183

Penalties and Incentives .....................................................................184

Monitoring ..........................................................................................184

Institutional Arrangements for Review .............................................. 185

Amendment of Provisions .................................................................. 185

Factors External to the Agreement ............................................................ 187

Political Agency ................................................................................... 187

Support of Key Actors and Groups .................................................... 187

Change in Policy or Government ....................................................... 187

Rivalry Between Government Departments ......................................188

Lack of Information on Agreements and Related Policy and Legislation ....................................................188

Project Viability and Margins .............................................................188

Ongoing Relationships ........................................................................................189

Using the Agreement to Build a Relationship ..........................................189

Building Trust and Tackling Barriers ......................................................... 191

Summary of Section 5 .........................................................................................192

Notes for Section 5 .............................................................................................. 193

REFERENCES .......................................................................................................194

INDEX ..................................................................................................................201

GLOSSARY AND ACRONYMS .......................................................................... 203


An index in the final pages

of the toolkit allows specific

topics to be located quickly.

A glossary of terms and

acronyms is also provided

at the back of the toolkit.

About the Authors

GINGER GIBSON works with indigenous governments and communities in Northern Canada and Latin America on negotiation, consultation and implementation of agree-ments with mining companies. For the past 15 years she has researched and worked in the fi elds of social and cultural impact assessment, resource policy and negotiation. She is an Adjunct Professor at the University of British Columbia in Mining Engineering.

CIARAN O’FAIRCHEALLAIGH is Professor of Politics and Public Policy at Griffi th University, Brisbane. He has published numerous articles and books in the fi elds of public policy, resource economics and resources policy, negotiation, impact assess-ment, corporate social responsibility and indigenous studies. For nearly 20 years he has worked with indigenous organizations on negotiation of mining agreements, and has acted as an advisor and negotiator for many of Australia’s leading Aboriginal organizations. He is currently advising the Kimberley Land Council on negotiations in relation to natural gas development in the Kimberley region of Western Australia.

Acknowledgements

The development of this toolkit was made possible by grants from the Walter and Duncan Gordon Foundation. We greatly appreciate the Foundation’s support. James Stauch deserves particular thanks for his constant encouragement and support, and for his beautiful photographs found on many of the pages of this toolkit. Nadene Rehnby and Pete Tuepah from Hands On Publications provided invaluable assistance with editing and graphic design. Our thanks also to Alistair MacDonald, who contributed his expertise in social and cultural impact assessment, and many hours of editing support.

Many negotiators and community leaders from across Canada provided us with guid-ance and the benefi t of their experience, and reviewed the toolkit at different stages of its development. We are grateful to all of you:

Jason Batise, Wabun Tribal Council

Paul Blom, First Nations Summit

Mike Carpenter, Attawapiskat First Nation

Florence Catholique, Lutsel K’e Dene First Nation

Allen Edzerza, Consultant/Negotiator

Theresa Hollett, Nunatsiavut Government

Larry Innes, Canadian Boreal Initiative

Sandra Jack, Taku River Tlingit First Nations

Stephen Kakfwi, former NWT Premier and Dene Nation President

Melody Lepine, Mikisew Cree First Nation

Mark Rodney, Wemindji Nation

Arthur Pape, Pape, Salter and Teillet

Tony Pearse

David Peerla

Alan Penn, Grand Council of the Crees

David Porter, Kaska Nation

Bruce Uviluq, Nunatsiavut Government

Vivianne Weitzner, North South Institute

John B. Zoe, Tåîchô Government


SECTION 1: INTRODUCTION IBA COMMUNITY TOOLKIT PAGE 9 SECTION 1: INTRODUCTION IBA Community Toolkit PAGE 9

SECTION 1

Introduction to the Toolkit

Before You Start: Making the Decision to Negotiate ........................................... 11

Negotiation is Not Consent .................................................................................. 11

Information is Power ............................................................................................. 11

A Focus on Process as Well as Outcome .............................................................12

The Importance of Forming Networks ................................................................. 13

How to Use this Toolkit .........................................................................................14

Structure of the Toolkit ..........................................................................................14

IBA COMMUNITY TOOLKITNegotiation and Implementation of Impact and Benefi t Agreements

www.ibacommunitytoolkit.ca


IBA COMMUNITY TOOLKIT SECTION 1: INTRODUCTION

Introduction to the Toolkit

Contractual agreements between mining companies and Aboriginal communities now play a critical role in shaping the terms on which minerals will be extracted from Aboriginal lands in Canada. The capacity to negotiate and implement such agreements is critical to ensuring that resource extraction generates substantial benefi ts for Aboriginal communities, and that the negative impacts that can be associated with large-scale resource development are avoided or minimized.

In simple terms, an Impact and Benefi t Agreement is a contract made between a community and a company that provides Aboriginal consent or support for a project to proceed. These agreements can also be known by other names: participation agreements, benefi ts agreements, supraregulatory agreements, benefi ts sharing agreements, etc. In the toolkit, we also briefl y discuss forms of agreement that might be used during the project life cycle (for example, exploration agreements).

This toolkit is designed for communities engaged in negotiating these agreements with mining companies. It is written for community negotiators, members of com-munity negotiating teams, and consultants working with Aboriginal communities and organizations.

The goal of the toolkit is to provide materials, tools and resources for communities to help them address the process and content issues relevant to negotiating agreements in Canada. The focus is on private commercial agreements, where the parties are Aboriginal communities and mining companies.

We hope this toolkit will fi nd its way into many people’s hands, be used in all sorts of ways to aid the process of negotiations, and help achieve positive agreements.

SEC TION 1

While the toolkit focuses on the mining industry, many of the issues and processes addressed in the toolkit are relevant to agreement making in other industry sectors and contexts, including protected areas, oil and gas, and forestry.

Similarly, while Canada provides the specifi c context for the toolkit, many of the issues discussed and the strategies proposed are highly relevant in other jurisdictions where indigenous peoples negotiate with resource developers.

PAGE 10 IBA COMMUNITY TOOLKIT SECTION 1: INTRODUCTION

SECTION 1: INTRODUCTION IBA COMMUNITY TOOLKIT PAGE 11

Before You Start: Making the Decision to Negotiate

This toolkit is written from the perspective that a decision to proceed with a negotiation has already been made.

However, in some contexts, an Aboriginal community may decide not to negotiate with a corporation wanting to extract resources from its traditional lands. The com-munity may simply want to prevent resource exploitation and decide that negotiation is pointless. The community might then pursue other strategies to pursue its goal, such as litigation, direct political action, media campaigns, or political alliances with non-Aboriginal groups.

We stress in the toolkit that, while such strategies can in some cases be alternatives to negotiation, they may also be critical parts of an overall negotiating strategy. These strategies can be especially important in strengthening an Aboriginal community’s overall negotiating position, and in putting pressure on a company to compromise where negotiations are deadlocked.

To achieve success in negotiations, Aboriginal communities need to develop and implement broad strategies across a range of issues, including a legal strategy, political strategy, media strategy, and communication strategies focused both internally on the community itself, and externally on all stakeholders with the capacity to influence the outcome. This toolkit is designed to help Aboriginal communities develop appropriate strategies in each of these areas.

Negotiation is Not Consent

A decision to begin negotiations does not imply community consent to a proposed project or a decision to reach an agreement.

At the start of negotiations, communities have only limited information about a proposed project and the developer’s willingness or ability to meet community needs. As more information becomes available, the community may decide a project is not acceptable in principle, or that the conditions that would make it acceptable cannot be negotiated with the developer. In either case, and at any point in the negotiation, a community has the right to terminate the negotiation process. If the issue is the willingness of a developer to meet the community’s conditions, care should be taken to end negotiations in a way that leaves the way open for them to resume, should the company involved change its position in fundamental ways or a new developer takes over the proposed project.

Information is Power

Once a decision to negotiate is made, a community and its leaders need to undertake a hard-headed assessment of their position in relation to the company, the govern-ment authorities that will approve or reject the project, and the wider economic and political context. From there, the negotiating team must identify the overall strategy most likely to achieve a successful outcome. Critical to such an approach is a sound and comprehensive information base. Development of this base is a central focus of Section 3 of the toolkit.

Once a decision to negotiate

is made, a community and its

leaders need to undertake a

hard-headed assessment of

their position in relation to

the company, the government

authorities that will approve

or reject the project, and

the wider economic and

political context. From there,

the negotiating team must

identify the overall strategy

most likely to achieve a

successful outcome.


CAPE DORSET, NUNAVUT

A Focus on Process as Well as Outcome

It can be tempting to focus solely on the content of agreements, on the issue of what people achieved, for example the financial benefit they gained.

Through our experience as negotiators and researchers, we have learned that the process of negotiating and implementing agreements is absolutely critical in shaping the content of agreements and whether their potential benefits are realized.

We argue that a good outcome to a negotiation will reflect a range of factors, including:

• The wider context (e.g., legal and regulatory);

• The nature and extent of community involvement;

• The character of the community;

• The strategies and negotiating positions the community develops;

• The way the community structures its negotiating team;

• The legal position of the community in relation to the project; and

• The nature of the project.

All of these factors are addressed in the toolkit.

Two specific factors – a community’s clarity regarding its goals and its ability to stay united and to plan collectively – are perhaps the most powerful explanations for the success of negotiations. Some communities with little legal leverage have achieved successful agreements because they took the time to work out exactly what they wanted and then stayed united, even when things got tough. If negotiations do get tough, communities that are united can dig in and use other strategies to enhance their bargaining power, such as direct action, litigation and forging political alliances. Without unity, the company can often divide and conquer, consulting with the people they find easiest to deal with and ignoring and isolating the tougher ones.

Against this background the toolkit focuses heavily on the process of negotiation and the implementation of agreements, as well as their content.

Through our experience

as negotiators and

researchers, we have

learned that the process

is absolutely critical.

Some communities with

little legal leverage have

achieved successful

agreements because

they took the time to

work out exactly what

they wanted and then

stayed united, even

when things got tough.

PAGE 12 IBA COMMUNITY TOOLKIT SECTION 1: INTRODUCTION


The Importance of Forming Networks

While the toolkit provides information and resources, it is not a substitute for exchange of information among networks of negotiators and expert advisors.

Such networks can involve a range of activities, from large-scale, formal and systematic information exchange between groups of leaders and advisors across a broad range of issues, to informal discussion between two individuals on a specific, technical issue.

For example, in 2007 a group of James Bay Cree leaders and advisors visited the Kimberley region of Western Australia, hosted by the regional land organization, the Kimberley Land Council Aboriginal Corporation (KLC). Over the previous five years, the KLC had assisted communities in negotiating a series of mining agreements; the Cree group was just about to embark on its first negotiation with a mining company. The Cree had extensive experience in negotiating self-government agreements, an area where the KLC had limited experience but planned to become more active. The Cree and senior KLC staff spent a week travelling through the Kimberley region and meeting with Aboriginal leaders and negotiators, a unique opportunity to share expertise and experiences across a wide range of matters, including fundamental issues regarding Aboriginal governance and political strategies for dealing with companies and governments.

At the other end of the spectrum, in 2000 one of the authors was encountering problems in finding a mutually acceptable way of dealing with the specific, technical but important issue of indexing payments under an agreement between a major multinational mining company and an Aboriginal group in Australia. He spoke briefly by phone with technical advisors in both Australia and Canada who had dealt with the same issue in earlier negotiations between Aboriginal communities and the company involved. This assisted greatly in identifying an approach that would both meet the needs of the Aboriginal group and be acceptable to the company.

Between these two ends of the spectrum, endless opportunities for networking and information exchange exist. We hope the toolkit will support and encourage the further growth of such networks.

Toolkit Research and Development

In developing the toolkit, we reviewed all publicly-available literature on agreements in Canada and Australia, and drew extensively on our own experience in negotiation and agreement formation.

There may be a bias towards the communities and regions where we have worked. For example, Ginger Gibson has worked on these issues primarily in northern Canada and Latin America, while Ciaran O’Faircheallaigh has been involved in negotiations mainly in Australia. We used our review of the literature to ensure a broader perspective.

The manual was tested in two stages with a group of Aboriginal people who negotiate and implement agreements, as well as consultants and lawyers who work with them. In the first meeting, we presented a discussion paper setting out the proposed content of the toolkit to 20 negotiators and experts to ensure that all key issues were covered. In the second meeting, five negotiators and experts reviewed the full toolkit and provided helpful feedback and advice both on its content and presentation.

Without unity, the

company can often

divide and conquer,

consulting with the

people they find easiest

to deal with, and

ignoring and isolating

the tougher ones.

IBA COMMUNITY TOOLKIT SECTION 1: INTRODUCTION

How to Use this Toolkit

The toolkit is designed to be useful to readers in a number of capacities. For example:

• A community about to start a negotiation might use the toolkit as a basis for information-gathering and training, possibly with the assistance of an experienced trainer;

• A newly-appointed negotiating team member might read through the toolkit from beginning to end as a guide to the entire process of negotiations;

• A negotiator working on a specifi c provision might read through the sections of the toolkit dealing with that particular topic; and

• Consultants might revisit the guide on numerous occasions as they help a community through the lengthy negotiation process.

Structure of the Toolkit

The toolkit starts with an overview of the wider legal, political and regulatory environ-ment in which agreements are negotiated (Section 2). This is followed by three phases of negotiation (see fi gure below).

• Preparing for negotiations and establishing a negotiating position (Section 3);

• Conducting negotiations and creating agreements (Section 4); and

• Implementing agreements and maintaining relationships (Section 5).

The toolkit is designed as a practical guide to negotiating agreements. It is not an account of theoretical approaches to negotiation and their merits. Nor does it offer a prescriptive template for agreements, given that the goals of communities will differ, as will the appropriate content and structure of agreements. Rather, the toolkit is designed to provide a range of options for dealing with issues that arise in negotiations between Aboriginal communities and mining companies.

We hope the toolkit can support Aboriginal communities in Canada and elsewhere in maximizing the benefi ts they receive from agreements, and that it helps ensure that the processes used in negotiation adds to their capacity, unity and well-being.

Use the index in the

fi nal pages of the toolkit

to quickly fi nd the

information you need.

SECTION 3

Preparing for negotiations

and establishing negotiating

position

SECTION 4

Conducting negotiations and reaching agreements

SECTION 5

Implementing agreements and

maintaining relationships

Structure of the Toolkit

SECTION 2

Analyzing the project and the broader

environment

iba community toolkit · by ginger gibson and ciaran o’faircheallaigh march 2010 commissioned by...

Documents