Environments Journal Volume 35(2) 2007
Impact and Benefit Agreements:
A Contentious Issue for
Environmental and Aboriginal Justice
Courtney Fidler and Michael Hitch
Abstract
Impact and benefit agreements (IBAs) have become a common part of a
standard package of agreements negotiated between an industrial proponent
and a representative aboriginal organization. Among other things, IBAs recognize aboriginal peoples’ interests with the land and parallel more broadly with the
corporate social responsibility phenomena. IBAs seek to establish a bond based
on consultation and support of both parties in a mineral development scenario.
Challenges facing IBAs include their confidential nature and their relationship
to conventional environmental assessment (EA). IBAs go beyond the regulatory
and advisory EA processes and often find
Courtney Fidler is a graduate
themselves in conflict due to overlapping
student at the Norman B.
objectives and blurred boundaries. IBAs
Keevil Institute of Mining
can perpetuate injustices if benefits are
Engineering, University
not equally distributed to the community
of British Columbia. Her
or if monitoring and follow-up on behalf of
current research looks at
both parties are not continuous. To conaboriginal participation in
sider both challenges and opportunities,
mine design and operation.
brief descriptions and comparison of IBAs
She can be reached at
and EAs are discussed and questions
[email protected]
regarding the advantages of IBAs are conMichael Hitch is an
sidered.
Assistant Professor at the
Norman B. Keevil Institute
of Mining Engineering,
University of British
Columbia whose research
areas include, sustainable
mining communities, minemill integration, mine
waste rock management
and resource utilization
studies. He can be reached
at [email protected]
Les Ententes sur les répercussions et les
avantages (ERA) sont devenues monnaie
courante dans les séries d’ententes types
négociées entre un promoteur industriel et
une organisation autochtone représentative. Les ERA reconnaissent entre autres
les droits et les intérêts des personnes
autochtones en lien avec leur territoire et
évoluent fortement dans un contexte de
responsabilité sociale. Les ERA cherchent
à établir des ententes conclues sur une
base de consultation et d’appui des par-
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Environments 35(2)
ties concernées dans un scénario de développement minier. On retrouve parmi
les défis des ERA, leur nature confidentielle ainsi que leur rapport serré avec
les évaluations environnementales (ÉE) classiques. Les ERA vont au-delà du
processus réglementaire et consultatif des ÉE et entrent donc souvent en conflit
avec celles-ci en raison des chevauchements d’objectifs et des frontières floues.
Les ERA peuvent perpétuer des injustices si les avantages qu’elles apportent ne
sont pas distribués de façon égale dans la communauté ou si la surveillance et le
suivi ne sont pas maintenus auprès des deux parties. Afin de considérer autant
les défis et les perspectives, une brève description ainsi qu’une comparaison
des ERA et des EA seront discutées et les questions touchant les avantages des
ERA seront abordées.
Keywords
Mining, environmental assessment, Impact and Benefit Agreements, aboriginal
participation, mineral development
Introduction
Impact benefit agreements (IBAs) have become common practice in Canada
when mineral development is located within or adjacent to traditional aboriginal or treaty lands. IBAs are confidential bilateral agreements, negotiated
between mining corporations and aboriginal communities to address a multitude of adverse socio-economic and biophysical impacts that can arise from
mining development. Although not compulsory in most cases, they are increasingly becoming part of a standard package of agreements negotiated between
an industrial proponent and a representative aboriginal organization that can
recognize aboriginal peoples’ interests with the land. There are some modern
land claim settlements in which proponents must negotiate and complete IBAs
with the regional government before proceeding with mineral development. The
latter contractual arrangements involve the government and are therefore not
a product of private commercial law and will not be discussed here. Rather,
this paper will focus on IBAs that are negotiated on confidential bilateral terms
without government involvement and which exist, therefore, outside of a modern
land claim settlement model and adjunct statutory requirements.
Today, the increasing frequency of IBAs signals recognition that historic
resource extraction practices are no longer acceptable and that meaningful
consultation and accommodation with aboriginal peoples is becoming a normal
course of business. The terms of IBAs vary between projects but generally
involve two primary purposes: First, is to accommodate aboriginal interests by
ensuring that benefits and opportunities flow to the community. Second, is to
address social risk factors within the community such as adverse socio-economic and biophysical effects of rapid resource development. Ideally, IBAs are
instruments that can contribute to achieving a more sustainable mining development by ensuring proponents minimally infringe on aboriginal rights by engaging
in the appropriate level of consultation and providing adequate benefits and compensation.
C.Fidler and M. Hitch
51
Ostensibly, IBAs symbolize a new model for mineral development – a
model that operates outside the regulatory environmental regime without government presence. What does this new model mean for aboriginal groups and
the government? They are bound together in a literal, institutional sense through
Constitutional orders but, with the emergence and employment of IBAs, which do
not involve the government, aboriginal groups and the government are bound in
an increasingly divorced and disconnected manner.
In a mineral development scenario that is seemingly trilateral, IBAs are
bilateral agreements – a factor which may be problematic in the long term when
transparency, monitoring and the interests of the broader public, or even adjacent aboriginal communities are absent from the equation. Perhaps, on these
grounds, the instrument could be more effective and enhance procedural fairness
if aboriginal groups could learn from other IBA negotiations and if the general
public, stakeholders and/or adjacent communities could participate and provide
input. Ideally, such reform would not take away from what the affected aboriginal
group would receive in terms of benefits, compensation and legal recognition,
rather it would ensure, through comprehensive cumulative planning and assessment, that benefits are realized both intra- and inter-generationally.
As mining proponents continue to migrate into aboriginal communities previously untouched by commercial mining development (Warden-Fernandez 2001:
2), IBAs are one way to ensure proponents are cognizant of aboriginal interests
and concerns and proceed with development in accordance with aboriginal cultural needs and circumstances. With this unprecedented period of transition,
an array of interrelated environmental and social issues has emerged to reflect
the heterogeneous climate of mining in Canada. Over the last three decades,
there has been greater aboriginal participation in resource development owing
in part to the settlement of modern land claims, political movements towards
greater self-determination, and court rulings that recognize aboriginal rights and
title. Amidst more effective mining technology and the growing demand and
expanding potential markets engendered by globalization, aboriginal people
have “increasingly become purposive actors utilizing a variety of strategies…to
challenge the previously unassailable power of the mining industry” (Connell and
Howitt 1991: 197). Although globalization is a process without a definitive starting
point, Slowey (2005: 1) observes how the last three decades have seen concrete
changes in the relationship between the state and aboriginal peoples, signifying
a new era of resource development.
While this paper acknowledges IBAs as beneficial tools to ensure aboriginal communities accrue immediate benefits and compensation from development, the primary purpose is to lay foundations for consideration of the broader
implications. The intent is to raise questions with respect to the wholesale and
unquestioning adoption of IBAs – especially in contrast to the use of environmental assessments (EAs). For example, what does it mean for an aboriginal
community to have a private company determine the extent of their aboriginal
interests and, in some instances, lay claim to recognition of aboriginal rights
through an unlegislated confidential agreement? What are the advantages and
disadvantages of IBAs alongside or in comparison to EAs? We acknowledge
that IBAs have the ability to foster mutually beneficial relationships between sig-
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natories. However, we question whether IBAs may also perpetuate injustices in
the long-term if resources are not intra-generationally and inter-generationally
equitably distributed.
For the purpose of this paper, aboriginal justice will encompass the notion
of aboriginal peoples having the right to maintain and strengthen their own
institutions, cultures and traditions, having the right to pursue development in
keeping with their own needs and aspirations, and having the right to self-determination (United Nations Declaration of Indigenous Peoples, 2008). The broad
premise here is to add commentary to the existing body of knowledge on IBAs
and to convey some of the challenges that are presenting themselves in this
arena of converging private and public interests. Rather than limiting discussion
to those agreements specifically referred to as IBAs, this paper will define IBAs
generically to include participatory agreements and similar types of memoranda
of understanding and agreements that have the aim of determining the relationship and relative responsibilities and obligations between signatories.
Approach and Data Limitations
This paper will examine why IBAs are negotiated and how IBAs, as confidential
agreements, can threaten long-term environmental and aboriginal justice. The
problem of IBAs operating in isolation from the environmental assessment (EA)
process – a process that aims to avoid or mitigate a project’s adverse biophysical
and social impacts – is the starting point of this paper. The Crown’s absence is
also problematic, as the Supreme Court of Canada affirmed the Crown has the
legal duty to promote reconciliation of aboriginal and non-aboriginal interests.
Moreover, the Crown is responsible, as the fiduciary, to carry out consultation
and, where appropriate, accommodation with aboriginal peoples. As we demonstrate below, however, the company is increasingly taking on a surrogate role
and tending to these duties through IBAs, which follow a business model, as they
are enforced in private (commercial) law. Furthermore, because of IBAs’ legally
binding nature, the broader public interest may be undermined as a result of
confidential clauses, again side-stepping the Crown’s reconciliation duty.
This paper provides an overview of EA to exemplify how mineral development and regulatory regimes have evolved over three decades. This is followed
by a description of IBAs and their ad hoc nature through the employment of primary and secondary data sources, including environmental assessment legislation and scholarly journal articles from Canada and Australia. Australian aborigines, like aboriginal groups in Canada, have similar experiences with national
and transnational mining companies encroaching on traditional lands, part of
a broader process of globalization. Both aboriginal populations experienced
the institutional effects of European settler state policies, which subsequently
engendered forms of social and political colonialism. As a result, both countries’
colonial history and marginalization of aboriginal people have had significantly
limiting effects on how aboriginal people are able to participate and advance their
interests in resource developments.
This research has data limitations and assumptions. IBAs are voluntary
confidential agreements that take place outside of the regulatory process, and
are therefore difficult to evaluate in terms of how they were negotiated (who was
C.Fidler and M. Hitch
53
at the negotiation table) and what leverage each party had to work with. This
presents a fundamental problem for learning from and analyzing agreement processes and provisions. Furthermore, there have been no IBA litigations to date,
which raises important questions: Are IBAs truly effective or are enforceability
clauses so weak that they have not been challenged in court? Are IBAs evolving
to become recognized as living documents that require amendments and dispute
mechanism provisos to reflect and address the dynamics within an intercultural
mineral development?
Finally, as in any study, we as researchers bring personal biases from our
own ontological and epistemological experiences and ethical values; therefore
this paper reflects one of many ways to approach and explore the topical relationship of EAs, IBAs and environmental and aboriginal justice.
Canada, Mining and Aboriginal Peoples
As mining/exploration increasingly takes place on traditional aboriginal lands
– which is exemplified by statistics that maintain there are 1,200 aboriginal communities located within 200 km of producing mines (PDAC 2006: 16) – there is
undeniably a sense of urgency to plan for future growth in partnership with aboriginal communities. With Canada’s rich endowment of natural resources and
high mineral potential, the country is, and continues to be, in an excellent position
to supply global commodity demands. Mining has brought obvious benefits to
the country, including jobs, income, social support, economic diversification, tax
revenues and foreign exchange earnings; however, these benefits do not come
without a cost, particularly for aboriginal peoples who have suffered historically
from the inequitable distribution of resource benefits and adverse socio-cultural
and biophysical impacts of rapid development.
Aboriginal peoples in Canada view the recognition of their rights to land
and resources as a critical way to end dependency and regain control over their
livelihood. While the shift here is away from government dependency, it could be
assumed that for aboriginal peoples to become self-governing, autonomous, and
self-sufficient, the Crown needs to recognize and affirm such aspirations through
the course of law. Indeed land claim settlements, the transfer of programs from
state to local control, and the redistribution of power from federal-to-aboriginal
governance (Slowey 2008: xv) are the most tangible in-roads to achieve self-sufficiency. It appears alternative models are being formed. Aboriginal groups are
advancing their aspirations to have their interests recognized by mining companies, to stand-in for unsettled Crown-related matters.
The roles aboriginal people play in EA and environmental governance programs are often underpinned by a colonial history, and moving away from this
structure can be complex. Layers of institutional arrangements set out by the
state, from the Royal Proclamation (1763) to the present, have defined aboriginal existence within contemporary Canada. Increasingly, however, aboriginal
people and mining companies are finding ways of working together through prescribed (EA) and voluntary (IBA) initiatives. Mining companies recognize the
value of having aboriginal communities as their partners and realize that the
government is not always certain of which role to play within this sector. Mining
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proponents want to make sure the Crown has fulfilled its legal obligation to consult and want to avoid infringement of aboriginal rights and title. Increasingly,
they are taking on initiatives to validate this duty of the Crown and thus minimize
uncertainty. While the onus does not necessarily reside on the proponent to
carry out these measures and negotiate adjunct agreements, it is increasingly
common in Canada, since the vested interest of the company can be affected
by the uncertainty of aboriginal-government relations and how the government is
working towards addressing aboriginal interests.
A Brief History of Environmental Assessment
Historically, resource extraction interests from the southern metropole dictated
and overrode local and northern interests, but over the last several decades
this has been challenged. Justice Thomas Berger’s inquiry in the Northwest
Territories in 1974 was a milestone assessment for the proposed Mackenzie
Valley Pipeline because it was undertaken before irrevocable decisions were
made. Public consultation was extensive and meaningful, traditional knowledge
of aboriginal people was given due respect, and the scope of the inquiry was
broad (Boyd 2003: 158). The findings were, at the time, unprecedented and
initiated greater consideration of aboriginal interests in the realm of EA. Since
the late 1970s, when Berger recommended a ten year moratorium on resource
development to promote the settlement of land claims, a growing body of legal
jurisprudence has transformed aboriginal peoples’ relationship with the resource
economy. Greater aboriginal participation in resource development parallels
political movement towards greater self-determination, legislated provisions for
participation within the EA process, and emergence of modern land claim agreements, beginning in 1975 with the settlement of several land claims in Québec.
The Canadian Environmental Assessment Act (CEAA 1992) is the legal
basis that sets out responsibilities and procedures for carrying out EA at a federal
level. The CEAA seeks to achieve sustainable development, integrate environmental factors into planning and decision making, anticipate and prevent degradation of environmental quality and facilitate public participation (CEAA). EA has
undergone constant reform since its recognition by the federal government over
three decades ago. Provincial EAs entail separate legislation – each province
having its own environmental standards and administrative mechanisms to guide
the process and co-ordinate decision making.
Conventional EA has often been considered the best approach for determining, avoiding and mitigating the adverse impacts associated with resource
development. EA goals and approaches vary, based on project parameters and
jurisdictions, but the primary principles are clear: EA seeks to reduce adverse
biophysical and social impacts associated with proposed development. The
evolving framework of EA seeks to expand decision-making powers to aboriginal
communities through arrangements that reflect local concerns and needs. The
settlement of land claims, for instance, has had a significant influence on the
way EA is carried out in settlement areas (Valiela 2006: 1) and provides various
degrees of participation in or control of EA processes on the part of aboriginal
peoples or aboriginal institutions.
C.Fidler and M. Hitch
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The Intersection of EA and Consultation
Consultation is an integral component of EA. The scope and content can stem
from any number of reasons, including statutory and regulatory provisions, treaties, contractual arrangements and more specific common law requirements triggered in a particular resource development context (Government of Canada,
2008: 5).
Consultation and the ‘duty to consult’ doctrine arises from Section 35 of the
Constitution Act 1982. This area of Canadian aboriginal law is rapidly developing
and has a profound effect on how mining companies plan, develop and operate
projects. The nature and scope of consultation will vary given the circumstances,
but, at a minimum, consultation should be meaningful in order to minimize downstream conflicts (Hipwell et al. 2002: 12). There is now a long string of Supreme
Court of Canada (SCC) decisions that recognize aboriginal rights and reinforce
the requisite for consultation. Nevertheless the actual duty and nature of consultation and accommodation remain ambiguous.
Today, consultation with aboriginal peoples can involve three distinct but
overlapping forms: first, the Crown’s legal obligation; second, statutory compliance (employed through EA legislation); and, third, voluntary business initiatives
such as IBAs.
The government of Canada’s duty to consult with aboriginal people and
accommodate their interests is grounded in the honour of the Crown. The duty
to consult requires the Crown to participate in consultation and negotiation and,
where indicated, accommodate aboriginal interests. In Delgamuukw v. British
Columbia, Chief Justice Lamer held that “[t]here is always a duty of consultation
. . . in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue . . . . Some cases may
even require the full consent of an aboriginal nation” (Anaya and Williams 2001:
65). Any consultation conducted by the Crown must be ‘meaningful’ and must
maintain the ‘honour of the Crown’ whilst balancing broader societal interests
with those of aboriginal peoples. According to Bergner (2005: 3), this can result
in cases where the Crown makes decisions that may not meet the aboriginal
peoples’ expectations.
The second form of consultation is a regulatory requirement set forth by the
EA office, in the form of project-specific procedural requirements. Here, EA provisions are continuously modified and aim to incorporate and reflect local values,
priorities and knowledge through consultation, accommodation and information
distribution. The degree to which consultation is required reflects the location
and history (e.g. does the project exist within a numbered treaty or modern land
claim?) and the proposed mine plans.
The Canadian courts have made it clear that the Crown maintains the
fiduciary duty to consult, yet in recent practice, industry has taken consultation
measures much further to avoid adversely infringing upon aboriginal rights and
in turn lessen the chance of having aboriginal peoples interfere with mineral
development. Therefore, it is important for industry “to ensure that the Provinces
and Canada observe their obligations, since failure of a Province or Canada to
fulfil those obligations may lead to delay or prevention of important land and
resource use development in the country” (Willms and O’Callaghan 2004: 7-8).
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The proponent’s responsibility to consult with aboriginal people is increasingly
complex and cannot be understood in isolation from the Crown’s duty to consult
although, in theory, it is a separate process.
In short, given the history of top-down government-led environmental
management regimes, which entailed minimal aboriginal participation, new
approaches that have aboriginal peoples as key participants in mineral development illustrate a new approach. Hans Mathews (in Hipwell et al. 2002: 1),
president of the Canadian Aboriginal Mineral Association, maintains, “no longer
is it aboriginal participation in mining; but now it is mining company participation
in the aboriginal community”. It is likely that in coming years, the Crown will be
called upon to clarify the duty to consult and accommodate and the role third
parties’ play in the process. Evidently, there is a strong incentive for mining companies to participate in the Crown’s consultation process and to negotiate IBAs
to ensure the project moves ahead without litigation.
EA Challenges
Environmental policy and programs directed by the Canadian government have,
in many opinions, failed to accommodate the interests of aboriginal people (Baker
and McLelland 2003, Lane 2005, O’Faircheallaigh 2007). EA provisions to consult, accommodate and distribute project information with aboriginal people have
been written into legislation, however, the “in principle recognition of the need
for indigenous participation is often not reflected in practice” (O’Faircheallaigh
2007: 320). Because each project warrants a case-specific assessment (based
on the project size, geography, lifespan, associated aboriginal rights, etc.), there
is no single criterion that can be applied to measure or prescribe the degree to
which consultation and accommodation must occur – let al.one whether it will
be effective. Despite extensive EA mandates and terms of reference, controversy in respect to what suitable and effective aboriginal consultation means,
and how it is to be carried out, can be attributed to various issues. Substantive
and process-oriented issues that challenge EA to match theory with practice, in
respect to aboriginal participation, include: Differing local perceptions regarding
the appropriateness or desirability of development; incomplete baseline data;
proponents lacking sufficient knowledge and understanding of the socio-cultural
context of the project area and an insufficient recognition of traditional ecological knowledge (Mulvihill and Baker 2001: 364). Together, these heterogeneous
issues are challenging to capture within the EA process, particularly within an
inter-cultural environment.
The evolving legal recognition of aboriginal rights and title parallels a much
broader arena of environmental stewardship. Aboriginal people maintain a close
relationship with the land and resources (Berkes 1998, Feit et al. 2004). The
Royal Commission on Aboriginal Peoples (1996) stated that “land is absolutely
fundamental to aboriginal identity…land is reflected in the language, culture and
spiritual values of all aboriginal people”. Consequently aboriginal concerns about
environmental integrity remains strong, as they tend to suffer more directly from
the impacts of effects such as pollution, contamination, social breakdown and
economic hardship (Larcombe 2000: 3). Although EA continues to evolve, as do
aboriginal rights under Canadian and International Law, the mineral economy
is still, arguably, intensified by a hegemonic alignment of interests, institutions
C.Fidler and M. Hitch
57
and ideas that enable some to gain enormous political and economic power by
exploiting the environment (Gedicks and LaDuke 1993: 31).
From a policy or top-down perspective there appears to be a solid and regulated framework that offers a legitimate ‘representative’ structure for engaging
aboriginal people. According to Larcombe (2000), who was supported by the
Canadian Environmental Assessment Agency to evaluate significant environmental effects from an aboriginal perspective, “government and proponents
do not generally have a good understanding of what are Treaty and aboriginal
rights; how, when, or why projects may infringe or otherwise impact on such
rights; or what are their fiduciary and legal requirements with respect to meaningful consultation and protection of Treaty and Aboriginal rights”. In short, on
one hand, interpretation, assumption, and mistrust are prevalent themes linked
to aboriginal groups’ relationship with the government and proponents in the EA
process. On the other hand there is a significant break from the past, with more
flexible and dynamic EA parameters for inclusion and collaboration.
The Rise of IBAs
The framework to account for socio-economic and biophysical impacts from
resource development can, potentially, include two distinct but linked processes.
First, EA employed under federal or provincial legislation, and second, IBAs – private contracts between signatories, and considered a form of commercial law.
IBAs operate on a project basis and include provisions to address issues
such as recognition of local rights, training, profit sharing, compensation and
land-use pay-outs, environmental compliance and employment. Agreements
address an array of issues that may arise at any point during project life (i.e.
planning, construction and development, operation, closure, decommissioning
and reclamation). The impetus for negotiating IBAs is project specific, but generally involves a decision to develop resources that require access to aboriginal
lands or have an impact on aboriginal populations. Each IBA has distinct parameters but they principally operate on two premises: they address concerns of
aboriginal people and provide benefits to aboriginal groups from mineral developments. From a corporate perspective, IBAs align with corporate interests and
operate on a business model whereby proponents complete IBAs to minimize
risk and potential downstream project delays (i.e. costly litigation) and, in doing
so, improve relationships with local residents and enhance their business reputation.
A decade ago, nearly all literature on IBAs noted the lack of research carried out in this subject area. Now, and particularly over the last few years, there
has been an abundance of publication and research on IBAs from multiple disciplinary vantage points, all of which seek to fill the knowledge gaps and question
the instrument’s utility and motivation from corporate and aboriginal perspectives.
Researchers have examined IBAs from a range of disciplines, including geography (Galbraith 2005, Prno 2007), law (Gogal et al. 2005, Sosa and Keenan
2001, Keeping 1999), and political science (Qureshy 2006, O’Faircheallaigh
2006). Nevertheless, even with the increased prevalence of research and discussion on IBAs, many questions remain. The use of IBAs is now well-chroni-
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cled; however, its emergence and refinement over the years is tied distinctly to
legal and political quagmires that have no easy or definitive solutions.
The emergence of IBAs has been seen to address corporate social
responsibility, EA deficiencies, and Crown consultation deficiencies – yet perhaps it addresses a more complexly interwoven combination of all three. Certainly, IBAs parallel the emergence of more social and environmentally responsible industrial operations, but as the work of Qureshy (2006: 86) points out,
“the impetus for mineral exploration companies to seek aboriginal approval has
come from an absence of government intervention—a political vacuum—rather
than the imposition of laws and policies”. Canada’s ‘free entry’ system gives
mining companies the right to access and explore Crown land. Although there is
no legal requisite for companies to consult with aboriginal groups at this exploration stage, many do, because alternatives may entail aboriginal opposition
delaying the process for the company to proceed – or even litigation to prevent
the company from staking a claim. This suggests that IBAs have come about,
not because of an increase in social responsibility, but because of a desire by
proponents to reduce uncertainty.
Wolfe (2001) and Sosa and Keenan (2001) analyzed the long-term value
of IBAs for aboriginal communities and expressed skepticism about whether
aboriginal people have the capacity to negotiate and develop IBAs to reflect the
complexity and address the impacts of the projects being imposed. Sosa and
Keenan (2001) state that aboriginal peoples’ access to legal protection, government support, financial resources and expertise and information is essential
when devising an IBA – but rarely do we actually witness a trilateral negotiation.
Sosa and Keenan (2001) assert that the government should be engaged in IBA
negotiations to ensure aboriginal people have financial resources and access to
sufficient information to leverage a good deal.
With Canada’s mineral-rich resource lands, rapid advances in technology
and aboriginal peoples gaining greater legal recognition, IBAs have proved to
be one way to support more equitable and sustainable mining development.
Once negotiated between governments and corporations for the purpose of
economic development, IBAs have evolved from simple socio-economic contracts to more comprehensive assemblages. The sensitive financial information
of IBAs, established through commercial-type relationships between signatories
that often include profit and equity sharing, compensation and land-use payouts
and royalties is one reason IBAs may remain confidential. Another conjectural
yet rational function of confidentiality may be to prevent aboriginal groups from
sharing and learning from IBA experiences and thus to advance corporate bargaining power.
With globalization come neoliberal economic policies, and aboriginal peoples face even greater challenges for self determination. It is within this context that IBAs provide localized approaches for aboriginal peoples to have more
effective control over natural resources – control that is necessary to sustain and
improve their livelihoods and to build autonomously directed forms of economic
development. Avoiding direct government involvement and focusing more on
negotiations with the corporations extracting resources creates optimism in aboriginal communities, which experience(d) state oppression and failed assimila-
C.Fidler and M. Hitch
59
tion policies that did not cede any economic autonomy. In other words, the goal
of autonomy amidst market capitalism is not to be self-sufficient in the literal
sense, but rather to engage with other market actors without direct dependence
on the state. In this light, IBAs signal recognition that meaningful consultation is
a prerequisite for mining development in aboriginal communities, regardless of
existing legislation concerning aboriginal rights and statutory requirements. In
other words, IBAs form a new relationship between aboriginal communities and
corporations by creating more direct linkages that are influenced less immediately by the state. Within Canada’s mineral-rich lands, IBAs offer a piecemeal
approach to support aboriginal aspirations through negotiated agreements that
address concerns through legally binding contracts.
IBA Content: What are the Building Blocks?
When aboriginal groups sign IBAs directly with corporations, their ambitions are
recognized through a legally binding contract. The binding nature of IBAs gives
assurance to aboriginal and corporate signatories that go beyond the regulatory
and advisory EA process. Not surprisingly, the reasons why signatories engage
in IBAs vary widely according to objectives, circumstances and development
opportunities. Corporations want to ensure they have garnered aboriginal support for mineral exploration and development – and, in effect, solidify their social
license to operate through the completion of an IBA. Aboriginal peoples want
proponents to respect and address their aspirations, which could range from economic interests, recognition of aboriginal title, or perhaps extending the life of a
mine to provide longer-term employment opportunities. Whatever the aboriginal
communities’ goal, IBAs have the capacity, through a legally binding agreement
to advance such aspiration. In doing so, IBAs help identify and highlight contentious elements that may prove critical to planning a mine and offer guidance to
navigate an often politically-charged and financially-driven extractive climate.
While IBA negotiation timelines are context-specific, one IBA lawyer (confidential pers.com.) argues that IBAs are ideally negotiated early, before EA permits are issued and before the regulatory processes are too advanced. Early
negotiation preserves the option to say no before community opposition has
become entrenched, thereby also preserving the option to accept. Furthermore,
there is no legal framework, hence, no requirement for an IBA to be confidential, either party can walk away from negotiations at any time, and there is no
requirement for an agreement to be reached. All of these considerations are
determined at the negotiation table. However, if a proponent chose to proceed
without community support (i.e. without a social license to operate), they would
be putting themselves in a very disadvantaged position that could impair their
corporate reputation and impede the regulatory permitting process.
IBAs generally begin with introductory provisions to clarify the principles
and objectives of both signatories in regard to the proposed development. Notwithstanding, the pre-negotiation stage clarifies the EA status and additional
statutory and regulatory requirements and can build on legislated provisions that
the community, or negotiators, may perceive as deficient. While a proponent
may have the financial resources and ability to negotiate a competitive agreement based on contract provisions, the aboriginal group may draw upon its legal
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rights and use this as a form of leverage. These IBA provisions link to broader
objectives of self-determination in the manner described below, in part through
components promoting sustainability and local control of decision making. Moreover, as IBAs include provisions for economic self sufficiency (as cited below)
and political self governance, they contribute to self-determination in this way.
The ad-hoc and project-specific nature of IBAs leads to different objectives, yet
they commonly include the provisions listed in Table 1.
IBA Cases to Consider
With Canada’s strong economic foothold in resource extraction and the backlog
of aboriginal grievances pertaining to the land with the Crown, proponents are
relying on IBAs to move their economic bottom line ahead. Acknowledging this
reality, IBAs are increasingly common and have evolved from simple socioeconomic contracts to more comprehensive agreements that consider multiple
generations. Chief Carpenter of Attawapiskat First Nations in Northern Ontario
maintains that the IBAs formalized between Attawapiskat and DeBeers will guarantee jobs for local residents and give the community a voice in environmental
monitoring (De Beers Canada, online).
As noted in the section discussing provisions above, IBAs involve an array
of complex issues, including aboriginal title, access to develop traditional land,
consultation, cultural protection and economic development, all tenets that seek
to garner aboriginal support for the project. Acknowledging this reality, Diavik
Corporation President Rod Davey commented on his development project,
explaining that “Diavik recognizes that its project is on land traditionally used
by Aboriginal People…therefore it is important that we work closely together in
developing the mine” (Slowey 2001: 274). It is apparent that aboriginal communities in Canada will not support mining unless corporations offer benefits
and demonstrate respect to the environment and community (Hitch 2006: 103).
Similar to the statement above by the Diavik president, Billy Diamond (1999),
Grand Chief of the Cree maintains:
Indigenous Peoples and the Cree in particular are NOT antidevelopmental. We welcome the economic benefits, training
and technological transfer that are associated with large
resource projects. But we do insist on one criteria [sic]. First
and foremost, all aspects of the partnership must be coauthored and co-managed by all the partners.
Again, corporations want to ensure they have garnered aboriginal peoples’
support for mineral exploration and development. IBAs achieve this in Canada
with a greater certainty than what may be offered by conventional resource management frameworks or social welfare programs.
The Galore Creek Project, in Northwestern BC located within the territory of
the Tahltan First Nation, received an EA certificate in 2007 in conjunction with an
IBA. Although the project is currently suspended due to soaring capital costs, the
IBA process, coupled with the EA process lends credence to the value that stems
from collective decision making, early engagement, long-term planning and ambitious temporal and spatial scoping of environmental effects. The Galore Creek
Project agreement supports the Tahltan’s principles of environmental steward-
61
C.Fidler and M. Hitch
ship, economic sustainability and self-determination, and, furthermore, provides
funding and defines the process to ensure the Tahltan were active participants
in the EA process.
A contrast to the recent Galore Creek Project is the Dona Lake Mine agree-
Table 1. Common Provisions of IBAs
Provision
Objective
Exemplary Clauses
Employment
Increase employment opportunities
• Preferential hiring for aboriginal people
• Recruit and retain employees for longterm work
• Flexible schedule to accommodate
traditional activities such as hunting
Education
and Training
Increase opportunities through education and training
• Cross cultural training for both aboriginal
and non-aboriginal employees
• Apprenticeship and scholarship
programs
• Partnership with local schools and
community colleges
Economic
Development
Preferential contracting to aboriginal
businesses to
increase business
development opportunities
• Direct tendering to aboriginal
communities
• Unbundling contracts into simpler,
smaller components
Socio-cultural
support and
communication structures
Support societal
challenges, recognize and/or reaffirm
aboriginal rights and
historical cultural
background
• Monitor social impacts with developed
indicators
• Fund community projects and physical
infrastructure
• Committee meeting to liaise and
facilitate on-going communication
Environmental
Monitoring and
Protection
Ensure corporations
comply with existing
laws, regulations and
incorporate additional environmental
protection provisions
into the IBA
• Emphasis to give certain EA clauses
particular attention
• Obligations regarding abandonment and
reclamation
• Minimize activity in spiritually and
culturally sacred areas, such as
archaeologically significant sites
Finance
Monetary settlements to compensate for surface or
subsurface development
• Fixed cash payouts, variable cash
payments and suspension payments
• Joint venture and development funds
• Payout structuring to meet community
needs, i.e. not a lump sum
Commercial
Terms
Ensure contract has
terms to reflect longterm planning and
enforcement
• Dispute resolution
• Force majeure
• Confidentiality
Compiled from: Bergner 2006, Hitch 2006, Kennett 1999, and Shanks 2006.
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Environments 35(2)
ment in Ontario. In 1987, the signatories – Osnaburg Indian Band and Dome
Exploration Ltd. – reached an agreement only to have it fail several years later.
The failure was correlated with the paternalistic approach the proponent took,
with decision making solely in the hands of industry and little consultation with
the Osnaburg Nation (Doelle 1992). The enforceability clauses of this IBA, like
others, remain largely unknown. The employment quotas were not achieved, the
training programs were unsuccessful as students left school to work at the mine,
and not one individual completed the apprenticeship program (Doelle 1992). The
time differential with Dona Lake and Galore Creek puts the earlier agreement in
a better position for analysis, given that it was negotiated over twenty years ago.
It remains to be seen whether the intentions and aspirations of the Galore Creek
IBA will be realized. In addition, the Galore Creek Project represents an innovative IBA today, however, with time, newer more innovative IBAs will likely appear,
making room for critique on what we currently consider to be equitable and just.
As the examples above illustrate, the IBA needs to reflect the aboriginal
communities’ capacity. An IBA can provide employment targets, but if the community does not have the capacity to fill them, as seen in the Dona Lake IBA,
“the impact on the project as well as the community will be negative, and the
potential for serious problems to occur is present due to unrealistic commitment
in the IBA” (Diges 2008:10).
IBA analysis performed by Hitch (2006) demonstrates that the criteria
employed in IBAs are evolving to incorporate more holistic company policies,
aboriginal partnership and cooperation, training and education, employee participation and well being, community capacity building, and community participation and informed disclosure. All of these components, Hitch argues, are
essential for a sustainable mineral development. Taking a linear evolutionary
approach, the following IBAs (some of which now exist within land claim settlement models) were examined to determine the extent to which they incorporated
the above criteria; Placer Dome’s Dona Lake IBA (1987); Falconbridge’s Raglan
IBA (1995), Echo Bay’s (now Kinross) Ulu IBA (1997), BHP Diamond’s Ekati IBA
(1998), INCO’s Voisey’s Bay IBA (1998), Kenecott/Aber (now Diavik Diamond
Mine Inc. and Harry Winston Diamond Mines Ltd.) Diavik IBA (2000) and Tahera
Diamond Corporations Jericho IBA (2004). The findings illustrate that with time
IBAs progressed from simple socio-economic contracts to more comprehensive
assemblages, with provisions that call for greater participation, transparent communication, and engagement between signatories.
EA and IBAs in Tandem
IBAs play an important role in fostering a collaborative vision for resource development that, in many cases, goes beyond conventional EA management. While
in most cases IBAs are not a legal requisite, they are, in effect, part of a legal
framework that is intrinsically linked to EA and the doctrine to consult. While
EA principles aim to minimize and mitigate environmental impacts associated
with development, IBAs have aboriginal people acting directly with corporations
to create opportunities out of mining development. On these grounds, there
is optimism for aboriginal groups to continue gaining political expertise through
C.Fidler and M. Hitch
63
IBA negotiations, so that resource development, as traditionally done, no longer
trumps local interests and aboriginal rights. However there is also concern that
if aboriginal groups do not negotiate and receive a ‘fair’ deal for themselves,
then the IBA could have damaging long-term implications. This type of scenario
would not advance self-sufficiency or prosperity within the community. Although
IBAs symbolize partnership between parties, there is increasing skepticism on
how benefits are equitably distributed throughout the communities. For example,
literature suggests that “women are disproportionately affected by the negative
impact of resource extraction and are unable to take advantage of the economic
opportunities presented” (Shanks 2006: 42). Class differences and governance
structures in communities may also affect how benefits are distributed, as will the
representation and consensus methods that determine IBA provisions.
In jurisdictions where EA regulations are weak, IBAs “may be a First Nation’s
only chance to ensure that the environmental impact of the project will be minimized” (Sosa and Keenan 2001: 14). Accordingly, IBAs can include specific
chapters to address wildlife migration, culturally significant sites, environmental
monitoring systems, compliance mechanisms, and/or obligations to mine closure
or reclamation that EA did not sufficiently detail. Where EA may be unsuitable or
unable to accommodate the cultural and spiritual value aboriginal communities
have with the land, IBAs may serve a role.
The Canadian Institute’s conference on Aboriginal Law and Consulting,
held in Toronto, February 2007, focused on legal and practical considerations
of IBAs to manage risk and reduce uncertainty. The presentation, Managing
Risk Through Impact Benefit Agreements points out that it may be more practical to negotiate IBAs without crown involvement. The bilateral format avoids
placing aboriginal groups and corporations in the position of discussing sensitive
financial matters in the presence of the government “whose policy it is to claw
back any revenues realized through agreements” (Bayer 2007: 5). Moreover,
because negotiations can be a slow process there is always the threat that if
the government is not satisfied with the rate of progress the project could be
abolished altogether.
Indeed both EA and IBAs have deficiencies, yet the flaws in one instrument
may be advantageous and more effectively carried out by the other – depending
on the context of the situation. While acknowledging aboriginal peoples’ enduring
challenges with respect to self-governance – which entails broader socio-economic and political challenges with the government – IBAs appear to beneficially
support concerns that EA’s somewhat restrictive process cannot. Evidently there
is tension and potential overlap between the role of government decision-making
in social and environmental matters and that carried out in privately negotiated
IBAs. Wolfe (2001: 5) attributes economic development as an essential mechanism to improve aboriginal living standards and IBAs give corporations a role
in policy development that may involve the “blurring of boundaries between
government and business”. With this as the case, aboriginal groups considering signing an IBA face a blurred boundary between government and corporate agendas. Moreover the government role of ensuring a proponent, through
an EA, has minimized or avoided negative environmental and social effects is
blurred because IBAs may build on EA measures to mitigate and offset effects.
While select responsible authorities involved in the EA process have access to
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Environments 35(2)
IBAs, the broader public does not, and therefore cannot identify, in totality, with
any project’s social and biophysical assessment process.
The confidential nature of IBAs prohibits awareness among parties
entering IBA negotiations of useful precedents and the potential to learn from
previous negotiations. Consequently, the Public Policy Forum (Shanks 2006:
i) published a report stating that there is a need for the public sector to become
more engaged in IBAs, especially in the absence of a regulatory framework.
Public presence in the IBA process would, according to this report, support and
help clarify how environmental regulatory processes should be monitored and
mitigated and, furthermore, what socio-economic factors should be considered
for the IBA. Nevertheless, the role of pubic participation in IBA negotiations is a
contentious issue. One principle behind EA devolution – particularly in northern
Canada with the employment of co-resource management models – was to move
away from paternalistic forms of governance to ensure aboriginal participation is
integral to resource development and management. Thus, government involvement and presence in IBA negotiations would be somewhat counter-intuitive to
this devolution.
Aboriginal Environmental Justice
While discussion in the literature and experience with EAs and IBAs may be too
limited for comprehensive consideration, there is sufficient work and collective
experience to raise key questions about aboriginal and environmental justice
alongside IBAs. A fundamental question to consider is whether IBAs should be
public or private agreements. Connected to this is the question: Who has the
right to decide, determine and rationalize what is best for an aboriginal community in a resource development scenario? Many might argue the aboriginal
community as the correct response; however, what if previous IBA experiences
demonstrate that the lack of government intervention and mediation could place
aboriginal peoples at a disadvange with respect to receiving a fair deal? This
disadvange could trump long-term community aspirations and the pursuit of
autonomy and self determination.
Furthermore, we question spatial boundary issues of IBAs. Consider what
it means for one community to negotiate a confidential agreement that could
potentially adversely affect a community downstream that is not party to the
agreement. With respect to broader societal environmental goals, who has the
right to decide whether IBAs should be public or private?
After a long history of discursive assimilation policies and government-led
resource management policies that marginalized aboriginal peoples from participating in projects affecting their own lands, why, we ask, would an aboriginal
community want to pass up an agreement that deals directly with their issues,
above and beyond what the government offers via legislations? Clearly, IBAs
are no panacea for addressing outstanding aboriginal rights and titles grievances
between aboriginal peoples and the Crown. However, as literature and experiences indicate, IBAs can be beneficial as a stand-in agreement to acknowledge
certain aboriginal claims in the interim.
Aboriginal affairs are typically politically fueled and provide a rich arena for
C.Fidler and M. Hitch
65
the policy makers, aboriginal leaders (chief and council), individuals, mainstream
society, etc., to consider what is best for an aboriginal community in areas related
to governance, resources and economic development. Many aboriginal communities have experienced great success with mineral development through the
application of IBAs; however, we proceed with caution to highlight that what has
worked in one community many not be transferrable to another. Lessons should
be noted and learned from, and experiences shared, but by no means should a
definitive IBA ‘laundry list’ be the way ahead. A module may be helpful to recognize more usual clauses and common circumstances, but for the most part one
has to remember that IBAs are responsive to very unique circumstances and
particular situations. Ostensibly, in this examination of aboriginal environmental
justice the notion of power between actors plays a significant role in shaping
the processes and outcomes. Political leverage, economic incentives, and the
strength of an aboriginal claim will also vary with each project and affect the way
in which consultation, EA and IBA processes proceed.
We also highlight that sustainability – and its variants sustainable development and sustainable mining – are controversial and ambiguous terms in a
non-renewable mineral development scenario. Because a mineral project is not
particularly long-term (generally less than 30 years) the mine design parameters
must be planned carefully with the community to avoid a boom-bust scenario that
could have irrevocable socio-economic and biophysical impacts.
The foregoing comments offer a reasonable survey of how EA, IBAs and
consultation intersect. In short, IBAs are not replacing EA, or the Crown’s duty
to consult, but they are challenging the so-called unique relationship the Crown
has with aboriginal peoples and highlighting some very fundamental tensions
which question the role of third parties’ in mineral development – particularly
with respect to the role of corporate entities in recognizing aboriginal interests
and furthering the Crown’s fiduciary duty of consultation and, where appropriate,
accommodation. IBAs do provide aboriginal communities with some autonomous room to maneuver and strategically plan in ways that reflect their interests
and long-term goals. By accommodating locally situated knowledge, customs
and an array of environmental and social concerns that legislation is not required
to address or does not address sufficiently, IBAs can offer aboriginal communities the opportunity to participate in a political process that determines land and
resource use to advance aboriginal agency.
Conclusion
The mainstream narrative on IBAs points to corporate achievement and progress
away from historical regimes of development that were consistently insensitive
to the interests of aboriginal communities. In a country that continues to build
prosperity through the exploitation and development of the lands and resources
frequently occupied by aboriginal people, it is becoming clearer that recognition
and reconciliation of aboriginal interests will be the key for safeguarding project
certainty. Aboriginal peoples in Canada view the recognition of their rights to land
and resources as a critical way to end dependency and regain control over their
livelihood. While the shift here is away from government dependency, it could
be assumed that for aboriginal peoples to become self-governing, autonomous,
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Environments 35(2)
and self-sufficient, the Crown needs to recognize such aspirations. Indeed land
claim settlements, the transfer of programs from state to local control, and the
redistribution of power from federal-to-aboriginal governance (Slowey 2008: xv)
are the most tangible in-roads to achieve self-sufficiency.
IBAs provide one avenue to accommodate aboriginal interests and address
some of the bio-physical and social effects of mineral development, while EA
provides another. On the other hand, IBAs can perpetuate injustices if benefits
are not equally distributed to and within the community, or if follow-up and the
monitoring of provisions on behalf of both parties are not continuous. The relatively recent emergence of IBAs over the last three decades leaves it unclear if
the community will benefit in the long-term, particularly in regard to aboriginal
youth as Canada’s fastest growing population (Statistics Canada 2008). While
acknowledging these concerns and many more like them, the question remains,
can IBAs provide long term benefits that outweigh the negative impacts? Or will
IBAs be similar to historical treaties and maintain inequality for aboriginal communities within the broader Canadian society (Galbraith 2005: 75)? Moreover,
what are the effects of blurring the boundaries between corporate and government agendas – and whose interests are in greater jeopardy? Given mining
proponents – as capitalist entities – are negotiating IBAs absent of the government, from our perspective, there is a fundamental concern that IBAs may nurture injustice and hinder long-term sustainability if agreements are not procured
in a manner that reflects the collective voice of the community.
The broad issue here is a meeting of aboriginal environmental justice with
non-renewable resource development. Our analysis considers the tensions
between these two positions, suggesting that a case-by-case approach is best to
understand the intricacies involved in EA and IBAs. By realizing that EA is inherently a public process that aims for transparency and community-based decision
making, IBAs are perhaps weaker in comparison because IBAs undermine the
broader public interest which is intrinsically linked to the interests regarding the
environment.
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