From the Walter and Duncan Gordon Foundation:
In Canada, particularly in the north, Impacts and Benefits Agreements (IBAs) are typically negotiated between a project proponent and local community leadership where a significant project is proposed for development on an indigenous nation’s traditional lands. IBAs are formal, written agreements that help to manage the social, cultural and environmental impacts associated with a development and to secure economic benefits for local communities affected by that development. Though most commonly used in mining, an IBA may also be negotiated for an oil or gas project, hydro or forestry development or even for a national park or protected area. Depending on the region, IBAs may be referred to by such names as Access Agreements or Access and Benefit Agreements.
However, there is very little publicly available information on best practices or models for negotiating IBAs, mainly due to the fact that terms of most IBAs are confidential. Although there is now a very modest amount of information in academic literature, there are currently no community-focused tools outlining best practices or advising on how to negotiate IBAs. Without such information, community negotiators are often wholly reliant on their legal advisors. As well, community members at large often feel shut out of the process. Although some IBAs are put to a community vote, there is little to benchmark or compare the negotiation process and outcome with. The confidentiality requirement, as well as other common elements such as “project support” clauses, has implications for the political power and pressure a community is able to leverage over the creation and unfolding of the project in question.
At the Gordon Foundation’s first Northern Policy Forum, held in 2007 in Fort Good Hope, NWT, the need to look closely at innovations in IBAs emerged as a shared desired outcome. In discussing the broader issue of obtaining revenues from natural resource development, in particular to benefit future generations, frustration was expressed about the inaccessibility of quality information on IBAs. Participants urged the Foundation to develop an IBA “model” and toolkit for communities.
The Foundation has asked Ginger Gibson, a Yellowknife-based anthropologist and mining engineer specializing in aboriginal engagement with the mining industry, to steer this process. Ciaran O’Faircheallaigh of Griffith University in Australia, a specialist on public policy, resource economics, social impact assessment and Indigenous studies who works regularly with Aboriginal communities in Canada, is serving as an advisor and co-author.
They are currently drafting a discussion paper that identifies the areas and issues on which information is needed, covering the key phases and information needs for communities that are seeking to negotiate an IBA. Gibson and O’Faircheallaigh are scoping the key issues, information needs and materials required, and convening a dialogue with an “expert working group” of about 15 northerners, key thinkers and decision-makers on the status and practice of IBA negotiation. The next phase of the project will be building the actual Toolkit, which will start in summer of 2008, with details to be worked out in consultation with the expert working group.
The toolkit is expected to help communities and their advisors understand the range of possibilities in negotiation, outcomes and implementation opportunities, as well as providing tools to better prepare for negotiation processes. While the specific design of the toolkit is to be determined, it may include a full range of materials – from short plain-language (or multi-language) primers, to full technical primers, to web-based materials, as well as potentially video-based learning materials.
Key issues likely to emerge across every phase of negotiation, include time (how do you allocate time to various stages?); money (where do funds come from? What is a strategy for getting funding?), and skills (what are the different skill sets needed in each phase?). The material in the initial discussion paper – to be tested with and augmented by the expert working group – will start from the Cape York Model for Negotiation which has been used to guide communities in many Australian negotiation contexts.
Read articles authored by Ciaran O’Faircheallaigh, reflecting on the Australian experience with Impacts and Benefits Agreements and looking at three actual models, highlighting their advantages and drawbacks.
Order the issue of Journal of Aboriginal Economic Development which includes an article on Mining Agreements and Aboriginal Economic Development in Canada and Australia (Volume 5, Issue 1).