62 LEXPERT MAGAZINE
|
JUNE 2016
| ABORIGINAL NEGOTIATIONS |
these issues and come to a resolution."
To be sure, there's a long history of in-
dustry leading consultation and accom-
modation with Aboriginal groups — a
history that actually predates many impor-
tant court decisions in the area. Aer all,
proponents are the ones who understand
projects in detail. Based on that notion,
governments across the country have been
directing companies to communicate and
consult with local communities, both na-
tive and non-native, for several decades as
part of the project permitting process.
Now, with dozens of projects hanging
in the balance, companies are increasingly
entering into direct negotiations with Ab-
original communities to work out detailed
impact benefits agreements (IBAs) aimed
at securing contractual, long-term indig-
enous support for developments.
"Time is money," says Tracy Pratt, with
Fasken Martineau DuMoulin LLP in To-
ronto. Direct negotiation of an IBA can
streamline regulatory approvals by docu-
menting consultation, accommodation
and project support.
Pratt says First Nations in BC have more
experience in IBA negotiations but over the
past several years, IBAs have increasingly
been used in Ontario. "In cases where First
Nations lack capacity to develop a project
or create a supply or service business on
their own, we're starting to see the use of
joint ventures, limited partnerships or oth-
er corporate structures." She says these ar-
rangements may provide equity interest, a
source of revenue or training, employment
and capacity building.
drilling. But Pratt says "the vast majority
of early-stage exploration can address such
concerns easily, once potentially adverse
impacts are clearly identified." It's worth a
company's best efforts to commit the nec-
essary time, energy and personnel toward
building a solid rapport.
"It's all about dialogue and building the
relationship," she says. "It's safe to say that,
at this stage, no mine will be constructed
in Ontario without IBAs with adversely af-
fected Aboriginal communities. e more
difficult question for a proponent – given
the increasing challenge of overlapping tra-
ditional territories and conflicting claims
– is with which Aboriginal community to
negotiate an IBA. It's a fundamental issue
facing developers and First Nations in On-
tario and elsewhere."
Treacy says the starting point for a com-
mercial agreement has to be "a realization
that consultation is not a short-term, quick
process but rather the building of a long-
term relationship [and] a recognition that
the values of the Aboriginal community
may not always accord with those of the
[larger] society." She adds that, from long
experience, indigenous peoples are very
skilled at assessing the sincerity of their
counterparties in negotiations.
She says successful IBAs are likely to in-
clude company commitments to: a frame-
Besides clearing regulatory hurdles, ben-
efits to companies can include securing lo-
cal workforce support in remote communi-
ties. For non-Aboriginal service and supply
companies, "formal collaboration with the
IBA community" can also improve their
bids on IBA projects, Pratt says.
"is type of capacity building is in its
infancy in Ontario but it's where, going
forward, there's room for innovation,"
Pratt says. "Where it's still a bit tricky is in
the earliest stages of mining projects."
THE PROBLEM LIES in the discrep-
ancy between rising expectations of First
Nations and the small scale and uncertain
nature of early-stage exploration, she says.
While Aboriginal groups may be impa-
tient for opportunity, mining companies
see core drilling and other early-stage ex-
ploration as low-impact activities with only
a modest chance of subsequent develop-
ment. At this stage, Pratt says, there are few
employment and business opportunities.
Moreover, exploration generates no rev-
enue and investors want to see their money
"going into the ground."
Alternatively, the Aboriginal commu-
nity may be strongly averse to seeing its
hunting seasons, medicinal plants or burial
sites disturbed by a mining company or its
contractor seeking to conduct exploration
"When the
majority of
the people
are Aboriginal,
you're coming
to their home
and you have
to respect
them."
PHOTO:
SHUTTERSTOCK
NADIR ANDRÉ
>
BORDEN LADNER GERVAIS LLP
