Negotiation of Agreements

Agreements With Other Levels of Government and Proponents

Types of Agreements

Different types of agreements can be negotiated at different stages of the mine life. Several First Nation resource policies mandate that agreements be signed between First Nation communities and proponents at different stages of mining activities, including exploration and development.15 For example, the Cree Nation Government Mining Policy recognizes agreements with proponents as the most appropriate instrument to ensure that social, cultural, economic and environmental issues are properly addressed.16 In this chapter, the following types of agreements are discussed: access/ exploration agreements, impact benefit agreements and accommodation agreements.

Access / Exploration Agreements

Mineral exploration potentially infringes aboriginal rights and title. Therefore, consultation and, if necessary, accommodation, are required by the common law. Despite this, BC’s mining laws do not require proponents to consult with or obtain the consent of First Nations before entering their traditional territories to conduct exploration activities. To address this legislative gap, many First Nations’ resource policies require proponents to seek and obtain the First Nations’ consent before carrying out mining activities on their traditional territories.17 The negotiation of an access/exploration agreement between the First Nation and the proponent is one way to establish First Nation consent to the proposed exploration activities.18

The negotiation of access/exploration agreements may provide First Nations with opportunities to receive information and provide input on the type, timing and location of exploration activities on their traditional territories. These agreements can provide details on partnerships between the proponent and the First Nation, address concerns about entry and mining activities on the land, and facilitate ongoing information-sharing about a project at an early stage in the process. Although not (yet) required by provincial legislation, proponents may choose to enter into an access/exploration agreement with local First Nations as an initial step towards meeting common law requirements and developing a good working relationship.

Some First Nations’ resource policies identify different levels of consultation and types of agreements depending on the impact of the proposed exploration activity. For example, the Taku River Tlingit First Nation may grant the proponent either a “Support Document”19 or a “Cooperation Agreement”20 where the proposed activities:

  • do not raise any serious concerns after a preliminary evaluation by the First Nation community;
  • involve the use of existing access roads, helicopter, fixed wing or walking surveys; and
  • do not involve intrusive exploration activities (such as the creation of new roads, use of heavy equipment, significant site disturbance of advanced exploration programs).21

Where the proposed activity raises serious concerns, and entails the creation of new roads, use of heavy equipment, or significant site disturbance, the Taku River Tlingit First Nation Mining Policy mandates that an “Exploration Agreement,”22 similar to the Teslin Tlingit Mining Council’s “Cooperation Agreement,23 be negotiated between the proponent and First Nation community.24

Some First Nations seek input on exploration activities and also accommodation or compensation based on a percentage of the expenditures by the proponent.  This approach received some judicial support in the Platinex case25 where the court noted that the mining company had offered 2% of its exploration expenditures as a payment to a community benefit fund for the First Nation.  The court did not rule on this matter but it is clear that a community benefit contribution based on a percentage of exploration expenditures is within the realm of possible options for interim accommodation in an access or exploration agreement.

The content of each access/exploration agreement will differ in each circumstance, depending on the parties involved and the proposed activities. A list of potential matters to include in access/exploration agreements is provided in Appendix “A”.

Recommended Solutions

Require access or exploration agreements with First Nations as a prerequisite to approval of Notice of Work application

[Tags: Access Agreement; Exploration Agreement; Free, Prior & Informed Consent; Grant of Tenement]

There are several benefits to legally requiring proponents to negotiate and finalize access agreements with First Nations as a prerequisite to obtaining exploration licences. Perhaps most importantly is the opportunity that this approach provides First Nations to raise concerns and discuss exploration plans with proponents before exploration activities actually commence. Completed access agreements can also serve as evidence to the provincial government that First Nations have been consulted and have given their free, prior and informed consent to the exploration activity.

Unlike BC, laws in several other jurisdictions require finalized agreements between Aboriginal communities and proponents before mineral exploration activities may commence. For example, in Nunavut, whenever proposed surface land use is greater than mere casual or temporary use, “Participation Agreements” must be negotiated and concluded before the proponent may access the land.26

In New Zealand, an “Access Arrangement” is a necessary precondition to explore on land owned or occupied by the Maori people.27 Where there is no single Maori land-owner, a Maori Trustee serves as the counter-party in negotiations over the “Access Arrangement” with proponents.28 On the opposite side of the globe, in Norway, proponents seeking to explore in traditional Sami territory need a special permit that, if granted, conditions any explorations in light of Sami interests.29

In Queensland (Australia), prior to the grant of exploration permits for minerals or coal, requirements under the Native Title Act 1993 must first be satisfied. The grant of a tenement (similar to BC’s mineral tenure) constitutes a ‘right to mine’ under the Native Title Act30 and will generally trigger a right to negotiate process where native title rights and interests may be affected by the activity.31 The right to negotiate process requires parties to negotiate an access agreement in good faith “with a view to obtaining the agreement of each of the native title parties” to the grant of the tenement or to the grant of the tenement subject to conditions.32 Where a proponent is seeking to conduct low impact exploration activities, an ‘expedited procedure’ (i.e., fast-track process) may be activated,33 under which the government seeks to grant the tenement subject to the ‘native title protection conditions’ (NTPCs). NTPCs are a set of conditions that the proponent must comply with and include:

  • procedures for notification to the native title parties of proposed exploration;
  • consultation on the work program;
  • field inspections prior to exploration; and
  • payment of an annual administrative payment to the registered native title parties.34

Registered native title parties may object to the expedited procedure by lodging an objection with the National Native Title Tribunal (NNTT).35 If the objection is successful, the right to negotiate process will apply; if unsuccessful, the government may proceed to grant the exploration tenement subject to the NTPCs.36 In practice, native title parties and proponents often reach agreement on the terms of an Access Agreement during the objection phase, as they both generally recognize the mutual advantage of a negotiated outcome for the development of long-term relationships. Notably, in Queensland the expedited procedure is not available to exploration permits for petroleum (oil or gas), for which the right to negotiate process applies in all cases.37

The previous regime in Queensland required proponents to reach an “Access Agreement” in all cases with all registered native title holders in the area marked for exploration, prior to accessing the land for exploration purposes.38 This regime no longer operates in relation to new tenements, but provides an alternative model to the expedited procedure process outlined above.39 Notably, under the Northern Territory (Australia)’s Aboriginal Lands Rights (Northern Territory) Act 1973 (ALRA), an “Access Agreement” must be negotiated prior to the grant of an exploration tenement where the proponent wants to explore on Aboriginal Land.40 The ALRA effectively grants Aboriginal land holders (through Aboriginal Land Councils) a de facto veto right over mining on Aboriginal Land, although this can be overridden by a decision of the Governor-General where the grant is in the national interest.41

Ensure parties have sufficient time to negotiate agreement

[Tags: Community Evaluation; Time Frames]

Adequate time is imperative to negotiate successful access agreements. The 30-day period provided under BC law for First Nations to share their concerns about a proposed Notice of Work is often too short a period to allow for meaningful negotiations to occur, especially considering the complexity of predicting the impacts of proposed exploration activities.

Other jurisdictions provide Aboriginal peoples longer time periods to respond to proponents’ proposals to explore on their traditional territories. For example, in New Zealand, legal provisions provide for sixty days for negotiations before the parties must proceed to arbitration.42 Under Australia’s Native Title Act 1993 right to negotiate process, there is no statutory timeframe for completing the agreement negotiations. However, where agreement cannot be reached, the parties must wait a minimum of six months before seeking arbitration from the National Native Title Tribunal (NNTT).43 Notably, the Australian Government is considering amendments to the Native Title Act 1993 to increase the minimum negotiation period to eight months.44

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