October 2014

Fall debut for updated IBA Community Toolkit

Whitehorse workshop sheds light on Yukon First Nations’ agreements with mining companies

By Vivian Danielson

Yukon First Nations gathered in Whitehorse in mid-August to discuss impact and benefit agreements (IBAs) and add their views to an updated IBA Community Toolkit scheduled for release this fall.

The toolkit is intended to help aboriginal communities negotiate IBAs with mining companies looking to start projects on their territory.

Ginger Gibson, co-author of the toolkit, said it was important to learn more about past and present IBAs between Yukon First Nations and resource companies before the revised guidebook is offered to aboriginal communities across Canada in October.

“We had never held an event in Yukon before and never developed a good feel for Yukon issues,” Gibson said. “It was timely, with many parties interested in Yukon now.”

In addition to this crucial background, Gibson said the revised document also captures the evolution of IBAs since the original was released in 2010. Financial arrangements between aboriginal communities and resource companies may now include gross overriding royalties for mines and profit-sharing deals with, or equity stakes in resource companies, rather than simply employment and contracting opportunities, as was typical in the past. As a result, the updated toolkit will place increased emphasis on financial planning and management.

Aboriginal communities should prepare for greater transparency of IBAs, Gibson added, as the federal government is drafting legislation to lift the cloak of confidentiality and require disclosure of IBA payments exceeding $100,000. “This [information] was held closest to the chest,” Gibson said. “But some IBAs are public now, so the cat’s out of the bag on financial considerations.”

The toolkit is published and distributed by the Walter and Duncan Gordon Foundation, a Toronto-based philanthropic organization focused on policy issues in the North. Research and ­technical support is provided by the Firelight Group, of which Gibson is a director. They also collaborate on IBA workshops, including the recent Whitehorse event.

The value in the August workshop, said James MacDonald, natural re­sources and environment manager for the Council of Yukon First Nations, came from sharing different experiences and perspectives. Unlike B.C., Yukon First Nations have settled most land claims and are largely self-governing, he pointed out. Yukon’s battle for devolution from Ottawa, won in 2003, has further empowered First Nations communities to directly negotiate IBAs.

Along with precedent-setting IBA case studies from Yukon, the updated toolkit will reflect and help explain recent legislative changes and aboriginal court decisions from across the country. As examples of this new content, Gibson cited the 2014 Supreme Court ruling on the Tsilhqot’in title claim in British Columbia, and revisions to the Canadian Environmental Assessment Act.

“We see the toolkit as a living resource,” Gibson said. “[The updated version] will also address issues such as the Mount Polley tailings dam failure in B.C. We saw the need to reflect on prevention and technical solutions and include suggestions on the terms for [industry] commitments such as compensation.”

IBAs vary greatly depending on the type of project, and with no universal blueprint, negotiations are often a challenge for all parties. Aboriginal negotiating teams can range from two to 20 people, noted Gibson, and many lack the resources and capacity of the companies they face across the table. In the past, he said, “Some didn’t know how to build a budget, for example, which is why we developed budget worksheets. The goal was to provide tools and resources, including the basic dos and don’ts of negotiations, to guide them through every stage of the process.”

Gibson said most IBA workshops of the type held in Whitehorse are requested by communities facing resource activity and/or development proposals.

The original IBA Community Toolkit grew out of a 2007 Gordon Foundation northern policy forum in the Northwest Territories and was further developed from input during meetings with aboriginal leaders across Canada (with the now remedied exception of Yukon). The content stresses the need for negotiators to establish the baseline socio-economic, cultural and environmental conditions of their communities and how things might change – for better or worse – if the project goes ahead. The other main sections focus on preparing for and conducting negotiations, reaching and implementing agreements, and maintaining relationships.

Allen Edzerza, a Tahltan and veteran negotiator who has attended IBA workshops across Canada, including the Whitehorse event, said the toolkit provides a common starting point for aboriginal communities, particularly those with no negotiating experience. “It’s helping,” he said. “The ones that have accessed it are pleased with it.”

Next: Collaborative response
B.C. government and First Nations team up to tackle the aftermath of the Mt. Polley tailings breach


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