LEXPERT MAGAZINE
|
JUNE 2016 63
| ABORIGINAL NEGOTIATIONS |
work for ongoing communications and
partnership over the life of the project;
training and employment; and contract-
ing opportunities or revenue sharing,
"where appropriate."
In return, Treacy says, the project pro-
ponent receives clear support and sign-off
on project details by the local Aboriginal
community. But all experts stress that ev-
ery indigenous group has its own priorities
and, where IBAs are concerned, no one size
fits all. A single project may entail separate
confidential. But confidentiality may soon
be swept aside by the new Extractive Sec-
tor Transparency Measures Act, aimed at
supporting international anti-corruption
efforts. e Act requires energy and min-
ing companies to disclose all payments to
governments exceeding $100,000 per year
in any one of seven categories, and this will
include First Nations governments as of
June 1, 2017.
Isaac says that in future this could lead to
public disclosure of agreement terms that
would previously have been confidential
— potentially making negotiations more
difficult, rather than less so, and likely
more expensive. And he wonders whether
Ottawa has dual objectives in extending
the Act to cover First Nations. "What's the
purpose of disclosure?" he asks. "Is it anti-
corruption or is it guiding the market?"
Nadir André, a partner with Borden
Ladner Gervais LLP in Montréal and him-
self a member of the Schefferville, Que.,
Innu community, says freedom of con-
tract may provide Aboriginal groups and
companies a partial solution to the current
logjam between Ottawa, the provinces and
First Nations. André advises his Aborigi-
nal clients that taking a project developer
to court should be a last resort in the effort
to ensure access to economic opportunity.
"I tell clients, it's like you take a quarter
and you flip it. You win or you lose." Far
better, he says, to negotiate for mutual ben-
efit. Beginning in 2010, the Innu of Schef-
ferville intermittently blockaded four iron
mines and have since negotiated IBAs with
all but one.
André cautions companies that, to be
successful, deals must be adapted to Ab-
original realities and this takes considerable
forethought. He cites the Innu agreement
with Tata Steel as a leading example. In
addition to training, employment and con-
tracting opportunities, as well as financial
participation in the mine, he says, the Innu
secured agreement that all project foremen
would be bilingual, to accommodate the
fact that the second language of the na-
tive community is French, not English. In
counterbalance, Aboriginal workers were
required to learn some basic English.
To maintain a focus on living up to train-
ing and employment commitments, André
says, the company agreed to hire two train-
ing and employment coordinators — one
negotiations with each of two or more Ab-
original groups and Treacy says that, in her
experience, a lack of understanding of dif-
ferences among Aboriginal communities
is one of three frequent contributors when
negotiations fail. e other two are begin-
ning consultations too late in the develop-
ment process and a lack of trust, respect
and ongoing communications.
"In other words," she says, "hurried, one-
off consultations do not work."
Tom Isaac, with Osler, Hoskin & Har-
court LLP in Calgary, says companies have
to know the business case for their project
in reasonable detail before they contem-
plate negotiating an IBA. And, he adds,
there's no standard-form contract. "ere's
no cookie-cutter approach. Companies
want to know, 'What's the market rate for
an IBA?' ere isn't one. What makes a
good deal for one company or one Aborigi-
nal group may not work for another com-
pany or another Aboriginal group."
Isaac adds that companies have to under-
stand that in negotiations with First Na-
tions "there's not necessarily a willing buyer
and a willing seller." Aboriginal priorities
may not include a major mining project
or pipeline. "You could be talking a differ-
ent language," which he says will require a
company to take a step back, be patient and
seek creative solutions.
THERE'S ALSO the emerging issue that
both companies and First Nations have tra-
ditionally preferred to keep financial terms
HEATHER TREACY
>
DLA PIPER (CANADA) LLP
"This is becoming a serious
situation for our nation
as a whole and it directly affects
the functioning of the economy.
We're really at a juncture where,
if we want continued economic
prosperity in Canada, we need
to address these issues
and come to a resolution."
