CRITICAL ISSUE 8:

Standing and Representation

The Issue

Issues of standing and representation relate to which groups or communities should be considered as a legitimate party or “qualified” community in a particular BA. Within the literature there are a number of strategies discussed on how these issues are addressed in practice. Across these strategies First Nations will need to consider which approaches for determining qualified communities best serves their broader interests, goals and rights claims.

Brereton, Owen and Kim (2011) highlight that there have been two main approaches used to define who constitutes a qualified community for the purposes of a BA. The first approach draws on connection to the land as the main criterion, and has been used in Australia, Canada and Melanesia, and reflects formal and/or customary law in those societies. For example, in the Canadian context, Exploration Agreements and IBAs have been negotiated with Indigenous and First Nations who hold land titles or mineral and land rights in the area. In Australia, the Native Title Act 1996 gives the Traditional Owners of the disputed land a ‘right to negotiate’ and creates a framework for regulating the agreement-making process. In Melanesia, traditional landowners and their representatives are at the core of negotiations around compensation and benefits and are required to participate in agreements before development can proceed (Brereton, Owen and Kim, 2011).

The second approach for identifying a qualified community uses impact as the main criterion. Here the focus is on identifying those areas that are likely to be most affected by the development. All community members within that area are then considered to be covered by the agreement, regardless of their land tenure status. For example, this could include those communities where project infrastructure is located (Brereton, Owen and Kim, 2011). A third category concerns communities that are not located on or near the project but which may be affected by the project’s “downstream” impacts” (Loutit, Mandlebaum and Szoke-Burke, 2016).

Subsequent developments in Canadian case-law and the BC Government ’s commitments with regard to alignment with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) also have a bearing on issues of standing and representation. In practice, this determination is influenced significantly by the government’s determination of which communities will be consulted for EA or other similar processes.

Once standing is established, communities also have the task of identifying who will represent their interests in the negotiation of a BA. First Nations might be represented by band councils, chiefs, or specific development corporations (Sosa and Keenan, 2001). Some communities in Canada and Australia have found that having one development corporation or institution represent several Indigenous communities or landowners in their negotiation with companies can be very beneficial, provided that good communication and community consultation mechanisms are also in place (Sosa and Keenan, 2001). This allows for more efficient and effective use of available leadership and expertise and can avoid the “divide and conquer” strategy that some companies have used in the past. When more than one community is involved, the agreement may give preferential status to one over the others, such as to the community that lives closer to the mine” (Sosa and Keenan, 2001).

Abbreviations

AEM – Agnico Eagle Mines Limited

ASDF – Ahafo Sustainable Development Forum

AWBEN – Aboriginal Women’s Business Entrepreneurship Network

BA – Benefit Agreement BC British Columbia

BCFNDGI – BC First Nations Data Governance Initiative

BMZ German Federal Ministry for Economic Cooperation and Development

BNL – Barrick Niugini Limited

BSA – Benefit Sharing Agreement

CBA – Community Benefit Agreement

CDA – Community Development Agreement

CIRNAC – Crown-Indigenous Relations and Northern Affairs Canada

DIO – Designated Inuit Organizations

EIA – Environmental Impact Assessment

EMB – Environmental Management Board

EWB-MSV – Engineers Without Borders Canada - Mining Shared Value Initiative

FNFTA – First Nations Financial Transparency Act

FNLNGA – First Nations Liquefied Natural Gas Alliance

FNNBOA – First Nations National Building Officer’s Association

FPIC – Free, Prior and Informed Consent

GIZ – German Development Agency

HIA – Health Impact Assessment

IA – Impact Assessment

IBA – Impact Benefit Agreement

ICMM – International Council on Mining and Metals

IFC – International Finance Corporation

IFI – International Financial Institution

IIBA – Innuit Impact Benefit Agreement

INAC – Indigenous and Northern Affairs Canada

IOL – Inuit-Owned Lands

ISC – Indigenous Services Canada

KitIA – Kitikmeot Inuit Association

KivIA – Kivalliq Inuit Association

KLC – Kimberley Land Council

LIA – Labrador Innuit Association

LLG – Local Level Government

LNG – Liquefied Natural Gas

M&E – Monitoring and Evaluation

NADeF – Newmont Ahafo Development Foundation

NLC – Northern Land Council

NLCA – Nunavut Land Claims Agreement

NTI – Nunavut Tunngavik Incorporated

OSR – Own-Source Revenue

PJV – Porgera Joint Venture

PSAB – Procurement Strategy for Aboriginal Business

QIA – Qikiqtani Inuit Association

SEMC – Socio-Economic Monitoring Committee

SML – Special Mining Lease

TCS – Tax Credit Scheme

UNDRIP – United Nations Declaration on the Rights of Indigenous Peoples

Key Terms

Benefit Agreements

In this guide, the term Benefit Agreement (BA) is used as an umbrella term for agreements that vary in scope, scale, sector and types of parties to the agreement.

Depending on the emphasis, there are over 25 terms that are used to refer to the concept of benefit agreements (See Box 1). Within the literature the concept of benefit agreements (BAs) is varied and tends to be defined as a governance arrangement or as a mechanism for being a ‘good’ corporate citizen and securing a social licence to operate (Sarkar et al., 2010). Woodward & Co. and the Nanwakolas Council (2009) propose a definition that is more centred on the perspective of Indigenous Peoples:

Benefit agreements describe a written agreement that is the outcome of a consultation process about a proposed resource extraction, project or development that has the potential to impact the Aboriginal rights or interests of one or more Aboriginal groups in Canada.

Box 1: Benefit Agreements Lexicon

Accommodation Agreements

Benefits Sharing Agreements

Community Contracts

Community Development Agreements

Community Development Initiatives

Community Joint Venture Agreements

Cooperation Agreements

Development Agreements

Empowerment Agreements

Exploration Agreements

Impact Benefit Agreements

Indigenous Land Use Agreements

Interim Measures Agreements

Investment Agreements

Landowner Agreements

Market Access Agreements

Participation or Partnership Agreements

Project Support agreements

Shared Responsibilities Agreement

Social Responsibility Agreements

Social Trust Funds

Socio-economic Monitoring Agreements

Standard-setting or Certification Agreements

Indigenous

The term Indigenous is a broad term that captures First Nations, Métis and Inuit communities. It is often used now to replace Aboriginal, which is also a broad term that has been historically used to denote First Nations, Métis and Inuit, and is legally defined in section 35(2) of the Constitution Act, 1982 as follows: “In this Act, the ‘Aboriginal peoples of Canada’ includes the Indian, Inuit and Metis peoples of Canada”. The term “Indian” is a statutory term legally defined in the federal Indian Act.

For the purpose of this guide, the term Indigenous is used interchangeably with the term First Nation(s) and does not refer to Inuit or Métis. If the terms Aboriginal or Indian are used, they apply to specific policies, legislation or organizations, direct quotes from a study or publication, or the term used in a given country context.

Government /State

Reflecting language- in-use by Indigenous Peoples, the guide uses the words government and the state interchangeably. In other communities of practice and disciplines, the term “state” is understood as an organisation or political community with a defined territorial jurisdiction, with specific administrative, legislative and legal bureaucracies through which the state’s power is exercised, where as the “government ” is composed of individuals who control the state apparatus and employ the power of the state at a given time.

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