mca aboriginal lands and resource management forum negotiating equitable ib as
TRANSCRIPT
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IBA NEGOTIATIONS: EQUITABLE LEGAL CERTAINTY FOR ABORIGINAL PEOPLES?
Merle Alexander Kitasoo Xai’xais, Heiltsuk-TsimshianCo-Leader and Partner, First Nations Practice Group
January 31, 2012
Aboriginal Lands and
Resource Management Forum
Vancouver, BC
1. What do FNs want from IBAs?
2. How can FNs ensure equity?
3. TOP 5 Equity-Based Tips
4. Questions
5. Closing Remarks
What do FNs want from IBAs?
> Equitable role in the economy> Respect for our culture and TK> Environmental compliance that sets standards > Prosperous and sustained livelihood> Benefits that leave a legacy> Investment equal to extracted resources
> Fairness stands the test of time
HOW FNS ENSURE EQUITY?
> Cooperate among ourselves > Share information> Determine Crown’s role > Foster a resolution-innovative table> Exercise due diligence on Proponent> Leverage and deliver legal certainty
TOP FIVE
EQUITY-BASED TIPS
FOR IBA NEGOTIATIONS
DO TEMPLATE AGREEMENTS PROVIDE EQUITY?
> Yes – Hold the pen - it empowers
> Tailor template to reflect FN values> Build fairness in phased negotiation process> Create value in pre-approved wording> Customize your suite of templates> Exercise due diligence on Proponent> Share with other FNs
ARE NEGOTIATIONS WITH PREJUDICE?
> Yes
> Keep consultation records> Manage interactions with Proponent/Crown> Be aware of “First Nation agrees that this
Agreement fulfils the duty to consult and accommodate” language
> Think qualified or conditional support
CAN BENEFITS PROVIDE EQUITY?
> Yes
> Your TK study equal to baseline studies> Think transferable education and skills> Consider ownership of infrastructure> Create workable preferential bidding process> Establish committees that maintain PIC> Consider financial equity participation
CAN WE NEGOTIATE CONSENT?
> Yes – everything is negotiable
> Set your conditions and terms for consent> Ensure you are informed at all times> Avoid commitments against citizens’ freedoms> Do not consent at early phases of the Project> Implement committees to maintain consent> Ensure you can withdraw consent
CAN $ ACHIEVE EQUITY?
> Yes and no
> Avoid single solution – lump sum payment> Do not accept – revenue sharing fulfills all
accommodation> Consider all options.> Tie benefits to successful milestones> Exercise due diligence to maximize options> Be innovative and creative
QUESTIONS?
CLOSING REMARKS
> How do IBAs transform the law?
> Translate constitutional rights into dynamic and concrete benefits
> Revitalize rights to sustainable prosperity> Deliver certainty to the BC economy> Create legacies for their beneficiaries