British Columbia is in the midst of a rush of mineral exploration and mining. Communities are challenged to respond in a way that minimizes impacts and maximizes benefits from resource development. One way that First Nations communities can engage is through agreements with proponents, the provincial government, and other First Nations. Chapter 1: Negotiation of Agreements discusses inter-governmental agreements between First Nations, access agreements, impact-benefit agreements and accommodation agreements, and provides examples of innovative laws from other jurisdictions that may inform First Nations’ policy documents and BC mining laws.
Developing written protocols or agreements with neighbouring First Nations for coordinated negotiations on the industrial issues affecting adjacent, shared or overlapping territories may help prevent the use by third parties of a ‘divide-and-conquer’ approach to exploiting resources on First Nations’ traditional territories.
Mineral exploration potentially infringes aboriginal rights and title, so common law requires consultation and, if necessary, accommodation with First Nations in whose traditional territories mineral exploration would occur. Other jurisdictions protect Indigenous rights and title through laws that require finalized agreements to be made between Indigenous communities and proponents before mineral exploration activities may commence. In BC, proponents should similarly be required to enter into access agreements with First Nations before engaging in such mineral explorations. Absent this requirement, many First Nations resource policies require finalized agreements and consent between Indigenous communities and the proponent before mineral exploration activities may begin on traditional territories.
BC law provides 30 days for First Nations to review an exploration permit application (called Notice of Work). This may not be adequate time to review the permit, especially where a community has received a number of Notice of Work applications. BC law should follow the lead of other jurisdictions and provide sufficient time for meaningful negotiations to occur.
Impact Benefit Agreements (IBAs, also referred to as Resource Agreements) may be negotiated to formalize relationships between First Nations and proponents, reduce the potential impacts of mines on and secure economic benefits of mines for First Nations, and serve as evidence of a First Nation’s consent to a project. IBAs commonly include business and employment opportunities, community development program contributions and training and education programs.
While several other jurisdictions have enacted laws that promote the negotiation of IBAs, in BC, there are no legal obligations for a proponent to enter IBAs with affected First Nations. Other jurisdictions also have laws that recognise and encourage Indigenous people’s right to financial participation. Negotiation outcomes could be improved by enacting similar laws in BC, and by First Nation’s including similar provisions in their resource policies.
Accommodation agreements are negotiated between a First Nation and the provincial government. In the Canadian mining context, “accommodation” often refers to the Crown’s duty to address First Nations’ concerns and reconcile conflicting interests. Although not required by law, many First Nation resource policies call for these agreements to be signed before the First Nation will consent to the proposed project.
Many First Nations’ resource policies require that accommodation agreements contain the following minimum requirements:
- provisions of technical, legal and financial resources to participate effectively;
- financial and community benefits from the project;
- the procedure for First Nation peoples participation in the regulatory process; and
- the procedure for harmonizing the regulatory process with the Crown’s duty to consult and accommodate.
Irrespective of what type of agreement a First Nation community contemplates entering into, there are important preliminary tasks that can help prepare for negotiations, including:
- Gathering adequate information;
- Developing negotiation strategies and identifying negotiators;
- Signing negotiation protocols (including funding agreements); and
- Determining minimum agreement content requirements.
These steps are discussed in depth in Chapter 1.
Agreements are a powerful tool for ensuring development occurs in consideration of First Nations values and interests. BC mining law should include provisions that ensure agreements are entered into in advance of project development and mandate sufficient timeframes for fair negotiation. In addition, First Nations communities should develop resource plans, protocols and policies to better ensure mining activities are carried out in accordance with their interests and values.
- Agreements with other First Nations
- Agreements With Other Levels of Government and Proponents
- Impact Benefit Agreements
- Accommodation Agreements
- Preparing for Negotiations
- Appendix A: What to Include in an Access / Exploration Agreement
- Appendix B: Recommended Sources for Further Information