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Abstract
Impact and benet 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 recog-
nize 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 condential nature and their relationship
to conventional environmental assess-
ment (EA). IBAs go beyond the regulatory
Courtney Fidler is a graduate and advisory EA processes and often nd
student at the Norman B. themselves in conict due to overlapping
Keevil Institute of Mining objectives and blurred boundaries. IBAs
Engineering, University can perpetuate injustices if benets are
of British Columbia. Her not equally distributed to the community
current research looks at or if monitoring and follow-up on behalf of
aboriginal participation in both parties are not continuous. To con-
mine design and operation. sider both challenges and opportunities,
brief descriptions and comparison of IBAs
She can be reached at
and EAs are discussed and questions
courtney@mining.ubc.ca
regarding the advantages of IBAs are con-
Michael Hitch is an sidered.
Assistant Professor at the
Norman B. Keevil Institute Les Ententes sur les rpercussions et les
of Mining Engineering, avantages (ERA) sont devenues monnaie
University of British courante dans les sries dententes types
Columbia whose research ngocies entre un promoteur industriel et
areas include, sustainable une organisation autochtone reprsenta-
mining communities, mine- tive. Les ERA reconnaissent entre autres
mill integration, mine les droits et les intrts des personnes
waste rock management autochtones en lien avec leur territoire et
and resource utilization voluent fortement dans un contexte de
studies. He can be reached responsabilit sociale. Les ERA cherchent
at mhitch@mining.ubc.ca tablir des ententes conclues sur une
base de consultation et dappui des par-
Keywords
Mining, environmental assessment, Impact and Benet Agreements, aboriginal
participation, mineral development
Introduction
Impact benet agreements (IBAs) have become common practice in Canada
when mineral development is located within or adjacent to traditional abo-
riginal or treaty lands. IBAs are condential bilateral agreements, negotiated
between mining corporations and aboriginal communities to address a multi-
tude of adverse socio-economic and biophysical impacts that can arise from
mining development. Although not compulsory in most cases, they are increas-
ingly 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 condential 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 benets and opportunities ow to the community. Second, is to
address social risk factors within the community such as adverse socio-eco-
nomic and biophysical effects of rapid resource development. Ideally, IBAs are
instruments that can contribute to achieving a more sustainable mining develop-
ment by ensuring proponents minimally infringe on aboriginal rights by engaging
in the appropriate level of consultation and providing adequate benets and com-
pensation.
at the negotiation table) and what leverage each party had to work with. This
presents a fundamental problem for learning from and analyzing agreement pro-
cesses 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 reect 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 reects one of many ways to approach and explore the topical rela-
tionship of EAs, IBAs and environmental and aboriginal justice.
proponents want to make sure the Crown has fullled its legal obligation to con-
sult 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.
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, OFaircheallaigh 2007). EA provisions to con-
sult, 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 reected in practice (OFaircheallaigh
2007: 320). Because each project warrants a case-specic 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, contro-
versy 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 sufcient knowledge and understanding of the socio-cultural
context of the project area and an insufcient recognition of traditional ecolog-
ical 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 identityland is reected 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, intensied 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 reg-
ulated 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 signicant environ-
mental 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 duciary and legal requirements with respect to mean-
ingful 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 signicant break from the past, with more
exible and dynamic EA parameters for inclusion and collaboration.
cled; however, its emergence and renement over the years is tied distinctly to
legal and political quagmires that have no easy or denitive solutions.
The emergence of IBAs has been seen to address corporate social
responsibility, EA deciencies, and Crown consultation deciencies yet per-
haps it addresses a more complexly interwoven combination of all three. Cer-
tainly, IBAs parallel the emergence of more social and environmentally respon-
sible 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 interventiona political vacuumrather
than the imposition of laws and policies. Canadas 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 explo-
ration 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 reect the
complexity and address the impacts of the projects being imposed. Sosa and
Keenan (2001) state that aboriginal peoples access to legal protection, gov-
ernment support, nancial 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 nancial resources and access to
sufcient information to leverage a good deal.
With Canadas 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 con-
tracts to more comprehensive assemblages. The sensitive nancial information
of IBAs, established through commercial-type relationships between signatories
that often include prot and equity sharing, compensation and land-use payouts
and royalties is one reason IBAs may remain condential. Another conjectural
yet rational function of condentiality may be to prevent aboriginal groups from
sharing and learning from IBA experiences and thus to advance corporate bar-
gaining power.
With globalization come neoliberal economic policies, and aboriginal peo-
ples face even greater challenges for self determination. It is within this con-
text 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 abo-
riginal 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-sufcient 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 inuenced less immedi-
ately by the state. Within Canadas mineral-rich lands, IBAs offer a piecemeal
approach to support aboriginal aspirations through negotiated agreements that
address concerns through legally binding contracts.
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. More-
over, as IBAs include provisions for economic self sufciency (as cited below)
and political self governance, they contribute to self-determination in this way.
The ad-hoc and project-specic nature of IBAs leads to different objectives, yet
they commonly include the provisions listed in Table 1.
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 innova-
tive 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 reect the aboriginal
communities capacity. An IBA can provide employment targets, but if the com-
munity does not have the capacity to ll 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 par-
ticipation and well being, community capacity building, and community partic-
ipation 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 settle-
ment models) were examined to determine the extent to which they incorporated
the above criteria; Placer Domes Dona Lake IBA (1987); Falconbridges Raglan
IBA (1995), Echo Bays (now Kinross) Ulu IBA (1997), BHP Diamonds Ekati IBA
(1998), INCOs Voiseys 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 ndings illustrate that with time
IBAs progressed from simple socio-economic contracts to more comprehensive
assemblages, with provisions that call for greater participation, transparent com-
munication, and engagement between signatories.
IBAs, the broader public does not, and therefore cannot identify, in totality, with
any projects social and biophysical assessment process.
The condential 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 involve-
ment and presence in IBA negotiations would be somewhat counter-intuitive to
this devolution.
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 commu-
nities 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
denitive IBA laundry list be the way ahead. A module may be helpful to recog-
nize 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 signicant 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 devel-
opment 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 Crowns 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 Crowns duciary duty of consultation and, where appropriate,
accommodation. IBAs do provide aboriginal communities with some autono-
mous room to maneuver and strategically plan in ways that reect 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 sufciently, IBAs can offer aboriginal communi-
ties 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,
66 Environments 35(2)
and self-sufcient, 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-sufciency.
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 benets
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 rela-
tively recent emergence of IBAs over the last three decades leaves it unclear if
the community will benet in the long-term, particularly in regard to aboriginal
youth as Canadas fastest growing population (Statistics Canada 2008). While
acknowledging these concerns and many more like them, the question remains,
can IBAs provide long term benets that outweigh the negative impacts? Or will
IBAs be similar to historical treaties and maintain inequality for aboriginal com-
munities within the broader Canadian society (Galbraith 2005: 75)? Moreover,
what are the effects of blurring the boundaries between corporate and govern-
ment agendas and whose interests are in greater jeopardy? Given mining
proponents as capitalist entities are negotiating IBAs absent of the govern-
ment, from our perspective, there is a fundamental concern that IBAs may nur-
ture injustice and hinder long-term sustainability if agreements are not procured
in a manner that reects 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 inher-
ently 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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