Weighing Benefits and Risks

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).

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