Aboriginal Peoples and Impact and Benefit Agreement:
Summary of the Report of a National Workshop

by Kevin O'Reilly and Erin Eacott

The Aboriginal Peoples' Impact and Benefit Agreement (IBA) Workshop, held in Yellowknife in May 1998, attracted more than 35 participants representing 18 Aboriginal organizations from across northern Canada. Chief Fred Sangris of the Yellowknives Dene First Nation and Barney Masuzumi, Research Director of the Dene Cultural Institute, co-chaired the workshop, a component of CARC's Northern Minerals Programme.

Impact and benefit agreements are intended to ensure that Aboriginal peoples benefit from mining projects and are compensated for the negative impacts of mines on their communities, their land, and their traditional way of life.

Originally negotiated between the government and mining companies, IBAs focused on training and employment in the project. More recently, Aboriginal communities and mining companies have negotiated IBAs to include revenue sharing, environmental provisions, reclamation procedures, cross-cultural training, and dispute resolution.

Aboriginal organizations' experience with IBAs ranges from those having negotiated numerous agreements to those anticipating or seeking their first negotiations. Aboriginal organizations have often negotiated in isolation from one another with few opportunities to share experiences and discuss issues. Confidentiality provisions in most agreements are a barrier to greater understanding of IBAs and their effectiveness. With no consistent definitions for IBAs, no record or catalogue of those that have been negotiated in Canada, and little published information on their implementation, CARC planned the workshop to provide a forum to share the experiences available throughout the North.

Kitikmeot Inuit Association: the Ulu Project with Echo Bay Mines Ltd. The Ulu project is a proposed underground gold mine with 1.5 million tonnes of reserves at 0.374 troy ounces of gold per tonne. As a satellite operation, it is proposed to truck its ore over a 100-km winter road to the Lupin gold mine in central N.W.T.

By 1996, the Lupin gold mine, which opened in 1982 and employs about 45-50 Kitikmeot Inuit, was no longer extracting sufficient gold to be cost effective. The Ulu project would extend Lupin's life by 6 to 7 years, so the Ulu IBA, signed in September 1996, was important for jobs at Lupin. Lupin had not required an IBA because it is located outside Kitikmeot Inuit land and began production before the Nunuvat Land Claim Agreement; Ulu required an IBA because it is located on Inuit-owned land.

Echo Bay Mines had a good working relationship with the Kitikmeot Inuit Association (KIA) and needed Inuit cooperation to move forward with Ulu. KIA encouraged Echo Bay to speak with and consult the smaller communities. Representatives from KIA and from the affected communities, an advisor, technical experts, and, where needed, lawyers have been involved in negotiations.

Some highlights of the IBA:

• creation of Inuit business and industry;
• development of an Inuit content formula for contracts;
• financial assistance and advance payments from Echo Bay for small businesses;
• social and educational Programme assistance from Echo Bay; and
• establishment of an implementation panel.

This first IBA negotiated under the Nunavut Agreement established some important principles for future negotiations:

• Major developments on Inuit-owned lands would add "value" to affected community/regional economies.
• IBAs would be considered a strategic and long-term economic development tool to help build corporate capacity for Inuit.
• IBAs should be considered an instrument for fostering goodwill and should provide the foundation for Inuit and developers to "work together" from project inception, through production, and finally to abandonment.
• An "Inuit content" factor in considering and evaluating tenders for mine services meant there would be a strong incentive for all potential contractors to maximize Inuit participation.

There have been no implementation issues with the Ulu IBA because Lupin was temporarily closed in April 1998 because of low gold prices. [Editors' note: Reopening is scheduled for mid-2000.]

Makivik Corporation: the Raglan Agreement with Falconbridge The Raglan Agreement covers an underground nickel/copper mine with 17 million tonnes of reserves in northern Quebec. Concentrate from the mine is shipped to Sudbury for smelting and on to Norway for refining. The mine opened in February 1998 and is currently in full operation, employing approximately 300 workers. It has an anticipated life of 15 to 20 years. 

The James Bay and Northern Quebec Agreement does not require negotiation of IBAs and the project is not on Inui owned lands. Falconbridge needed the shore for shipping and was concerned that an Inuit offshore claim recognized by the federal government could affect the project. A Memorandum of Understanding outlining a set of principles on the environment, employment, training, and compensation formed the basis for negotiations for an IBA. Makivik sought social and economic benefits, including participation of Inuit in the mining project.

Some highlights of the IBA:

• Inuit would receive $14 million plus 4.5% of mine profits, estimated at $60 million over 15 years
• Detailed project descriptions to trigger re-negotiation if the project deviated from original specifications
• An implementation committee of three Falconbridge representatives and three Inuit. Makivik also got agreement to have a representative appointed to the mine's Board of Directors
• A joint committee to oversee training programmes.
• Inuit enterprises, such as Inuit Air, are given preference for contracts and Inuit communities or individuals have entered into joint ventures with companies to seek contracts with the mine

With both pros and cons to employment quotas, Makivik believes goodwill on the part of the company is probably the best guarantee of fair treatment. Raglan does not set a quota for Inuit employment; there has never been more than 20% Inuit employees.

There are some implementation problems. Makivik has conducted both environmental and social studies on mine impact. A water quality study found nickel concentrations of 68 parts/billion, a level exceeding the Quebec standard of 25 parts/billion. Social impacts include a high rate of turnover of Inuit employees-70% compared with 15% among non-Inuit employees-and the fact that Falconbridge is not hiring older Inuit.

Several underground uranium mines are either in operation or proposed for northern Saskatchewan. Uranium mining has taken place since the 1940s and accelerated in the early 1980s.

Saskatchewan requires mining companies to enter into a Surface Lease Agreement and a Human Resource Development Agreement to ensure local and regional benefits. The Multi-Party Training Plan, involving the provincial and federal governments, Aboriginal organizations, and mining companies, is aimed at providing and supporting employment, training, and economic initiatives for northern Saskatchewan inhabitants. The Northern Labour Market Committee (NLMC), jointly chaired by the Prince Albert Grand Council, Northlands College, and the Provincial Government Of lice of Northern Affairs, oversees the plan as well as the Northern Apprenticeship Committee and the Athabasca Economic Development and Training Corporation. Local employment in the mining industry grew from nine in 1992 to 276 by September 1997.

The Athabasca Economic Development and Training Corporation, 75% ($45,000) funded by the Saskatchewan government, represents seven communities, three of which are First Nations. It facilitates and co-ordinates economic and training activities that support:

• increased job and business creation;
• economic development sensitive to local priorities;
• partnerships to improve the delivery of programmer from government;
• an improved environment for business and economic development;
• diversification of the Athabasca economy; and
• building and expanding the human resource capacities of the local people.

The corporation is looking beyond the mineral industry, analyzing each community for economic diversification potential. The goal is to match the communities' best attributes with appropriate projects and services.

Mount Nansen, in central Yukon, is an underground gold/silver mine most recently put into production in early 1997. Its relatively small production, along with that of several other properties in the vicinity, is milled onsite. There are also proposals for a coal mine, a copper project, and lime production in the area. [Editors' note: Since the workshop took place, the mine was shut down and abandoned.]

The Little Salmon/Carmacks First Nation has a membership of 600, 170 of whom reside in Carmacks. Since 1997 it has legally managed and governed 1003 square kilometres, with Aboriginal title to the surface and sub-surface, including minerals, of 60% of this land. It has Aboriginal title to the surface of the remaining land with mineral rights vested in the Crown.

In anticipation of a resurgence in mining activity, the First Nation entered a joint initiative with Yukon College to give its people mining skills. When BYG Natural Resources arrived, the citizens had acquired the skills. Prior to a land-claim settlement, BYG chose to sign a basic socio-economic agreement in part because it was financially beneficial for the company to hire locally. The First Nation's constitution-and later its land-claim agreement-states that ownership of the land is vested in the people and because the agreement had been signed only by the chiefs and council, it was not legally binding. A re-negotiated agreement was not ratified because few people understood the agreement, mineral access demands by the company were seen as too high, and citizens had concerns about environmental conditions at the mine.

The company works with the community in employment, training, and community projects. Thirty of approximately 75 people employed onsite are from Little Salmon/Carmacks First Nation, about 10 are employed with subcontractors onsite, and three are being trained in an assay lab. Because of the high percentage of local employees, there are few of the common social issues that occur when large numbers of nonresidents move into the area to work. A satellite Internet system with training in its use, a literacy pilot project, and training for enhanced comprehension and problem solving are supported by the company and other participants. The literacy pilot project helps employees' environmental vigilance by explaining such mining practices as putting chemicals in the tailings pond. The problem-solving aspect of the pilot project is built on "Aboriginal" values.

The First Nation is careful to avoid compromising its governance powers or ability to properly monitor its lands. Its Lands and Resources Department was established with an enforcement and monitoring role and works with federal and territorial agencies. Although the mine is on Crown land, it has a comprehensive training Programme on water quality and mine operations for its staff and is monitoring discharges into a creek that flows through settlement land.

The Lands and Resources Department is legislating land and water use on settlement lands and, in co-operation with the Na-cho Ny'ak Dun First Nation and Selkirk First Nation, is developing a land-use plan for 140,000 square miles (362,600 km) of traditional territory. The Umbrella Final Agreement that applies to all Yukon communities outlines the processes for land-use planning and environmental assessment and sets regulatory and environmental standards that are no less-and possibly more-stringent than required by general Canadian law. Although similar, the land-management processes differ from community to community to achieve greater community contribution.

Labrador Inuit Association: the Voisey's Bay Project with INCO Voisey's Bay incorporates open-pit and underground mining operations, an airstrip, and roads, with the potential to produce nickel, copper, and cobalt for 25 years. Its 150 million tonnes of ore are to be milled onsite and then shipped by ocean vessels for smelting and refining. It is proposed for an area with no previous major development; an environmental assessment was completed in mid-l999. [Editors' note: The project is now shelved indefinitely.]

The developer, INCO, has agreed to negotiate IBAs with both the Labrador Inuit Association (LIA) and the Innu Nation. There has been progress in education and training, employment, business opportunities, and social and cultural protection. The IBA is likely to address environmental impacts, compensation, and liability provisions, though the company is reluctant regarding the latter. The agreement will not have a specific Inuit employment quota, but will attempt to maximize opportunities. The expected employment level when the mine begins is 420 and this number will probably triple with the underground phase. Currently there are 900 Labrador Inuit interested in working at the mine; most have skills for the surface activities, but few have skills for the underground work. A multi-party training agreement was signed but, in the absence of funding commitments, has not been fully implemented. Joint ventures with Inuit and the company have been successful during the exploration stage.

LIA wants a land-claim agreement and IBA before the project goes ahead. A Memorandum of Understanding for the environmental assessment of the project was negotiated a year ago between Newfoundland, LIA, Innu Nation, and the federal government. INCO has continued drilling exploration; however, a court order prevents it from building roads until the environmental assessment is finished. The company's environmental impact statement was found inadequate by the panel, but Inco has now addressed the inadequacies.

Innu and Labrador Inuit have worked out the principles of an overlap agreement. Because each is involved in numerous large projects-both are negotiating separate IBAs and land-claims agreements and the Innu are in the midst of hydro

development proposals and are trying to build a new community-bringing the agreement to signing is not a priority.

The Troilus open-pit gold/copper mine west of Mistissini in east central Quebec began production in late 1996. With 46 million tonnes of reserves at 1.2 grams gold and 1.4 grams silver per tonne, the mine is expected to last 15 years producing 10,000 tonnes of ore per day.

In 25 individual mining operations in the James Bay territory in northwest Quebec over the past 30 years, there is essentially no history of Aboriginal employment. In 1994, the Mistissini Cree Nation successfully entered an employment agreement with INMET. INMET agreed to negotiate job descriptions and provided a list of potential contracts, allowing the Cree to plan their own private-sector development. The agreement includes provisions for training, a compensation package for families whose livelihood (i.e., trapping) is affected by the project, and participation of Cree in environmental monitoring. A cultural awareness Programme minimizes communication problems. The turnover rate for Cree is similar to that of other employees. There are 75 Cree employees onsite and 25 on mine-related contract work.

The James Bay Agreement resulted from litigation about hydro-electric development in northern Quebec. While it does not provide for participation in mining, it does have an environmental and social impact assessment process and a provision for protection of wildlife. Cree authorities have used this process to demonstrate their interest in resource development. The Quebec government has told companies that they do not need to enter into agreements and has advised them to be cautious in their dealings with Aboriginal peoples to avoid setting a precedent for the mining industry in general.

• Differences in resources and forms of governance among Aboriginal communities need to be recognized in IBAs and when negotiating applicable fees or royalties.
• For Aboriginal governments without mineral rights, land-claims or self-government agreements may provide for revenue sharing. A few Sabtu community land-holding corporations have successfully negotiated royalty provisions in surface access agreements. Under the Nunavut Agreement, Nunavut Tunngavik Inc. (NTI) retains mineral rights, while surface access is granted through the Regional Inuit Associations (RlAs). Both receive fees and royalties. On Crown lands in Nunavut, NTI receives 50% of the first $2 million royalties, and 5% thereafter.

Yukon First Nations have similar agreements for royalties on Crown lands. There is also an accord among all Yukon First Nations to share mineral, oil, and gas resources and royalties; where a project occurs on one First Nation's lands, a formula distributes some financial benefit to all First Nations.

Crown mineral royalties have remained relatively unchanged since the 19th century and are now being revised. 

• Precedence of rules may become an issue when mineral deposits are near a boundary between Crown and Aboriginal lands. Differences in regimes-such as taxation-may also give rise to competitive advantage in attracting mineral exploration. Royalties on Inuit-owned lands are tax-deductible for companies whereas royalties on Crown land are not. As well, royalties paid to First Nations are not taxable if used for community benefit.
• Saskatchewan First Nations want royalties and fees from two known uranium deposits and other deposits that may be developed in future.
• In Waswanipi (Cree)territory in Quebec, mining is in decline, with few opportunities to negotiate revenues. In Mistissini territory, the mining industry will not negotiate revenues. Forestry is the predominant resource in both territories and Cree have received compensation benefits from forestry impacts.
• Joint ventures and training with mining companies, governments, or educational institutions can help build local mining capacity; revenues could be provided through preferential contracting or equity in resource development companies.
• Creating a sustainable community, providing direct community benefits, investing to generate interest revenues for community projects, and supporting traditional skills and lifestyles are among objectives for Aboriginal management of mining revenues. Communities may make a distinction between individual compensation/benefits and collective compensation/benefits. An Aboriginal development corporation or a trust fund could allow community organizations to access the money or a heritage fund concept might provide for compensation and diversification.

• Confidentiality and non-disclosure occur during negotiations and after signing an agreement. Community members need all the information for effective input and for consent where required. Aboriginal organizations also need to be able to use information from IBAs when involved in other negotiations, such as for land claims. New guidelines for post-agreement disclosure are needed.
• When more than one Aboriginal organization negotiates with the same company in the absence of overlap agreements, confidentiality tends to benefit the company. In the interests of fairer, more equitable agreements Aboriginal groups should be allowed to work together before and during negotiations.
• Confidentiality often limits objections to licences, permits, company policies, and related matters and may not ensure appropriate environmental monitoring and approvals.
• Access to corporate financial records and independent analyses or direct involvement in the management of the mine can help inform Aboriginal organizations for negotiations and ensure that obligations in the agreement are being met.

• The relationship between IBAs and environmental assessment is not clear.

Where land-claims agreements exist, IBAs rely heavily on their objectives and on community consultation, and usually address environmental impacts. Because the recognition of impacts varies among land-claims agreements, a more comprehensive system would require developers to consult the appropriate Aboriginal government(s).

Where no agreement exists, there is no legal requirement for IBAs, and the relationship between the environmental regulatory process and IBAs is even less defined. Greater effort may be required by non-claimant groups to ensure environmental concerns are addressed when negotiating IBAs.

• Many IBAs do not specify Aboriginal people be involved in environmental monitoring and review. The BHP environmental assessment process created the Independent Environmental Monitoring Agency (IEMA)-independent of both government and Aboriginal peoples. Now, Lutsel K'e First Nation realizes that IEMA does not make adequate use of traditional ecological knowledge (TEK). The Labrador Inuit Association hopes to develop a similar model to the IEMA, but will want to add a mechanism to expressly include TEK.
• Aboriginal people believe environmental monitoring must include TEK.
• Because exploration often damages lands beyond the company's area of interest, Aboriginal organizations should become involved in environmental assessment at an early stage. Exploration permits should specify abandonment and clean-up procedures. In Labrador, companies must complete an archaeological assessment before work begins and must clean up after exploration.
• Consultation usually improves when an IBA is signed before conducting an environmental assessment. Information in IBAs and environmental assessments is often mutually reinforcing.
• Aboriginal organizations need improved capacity to assess resource development projects. Corporations need to see Aboriginal assessment and participation in the public environmental assessment as a "cost of doing business." Government may have a responsibility to ensure that Aboriginal people have the necessary resources to negotiate environmental concerns in IBAs.
• Enforcement mechanisms for environmental assessment, monitoring, and reclamation should be included in IBAs.
• Under proposed new federal Metal Mining Liquid Effluent Regulations, each mine in Canada will be required to establish a procedure to detect and report ecological effects and will have to make reasonable efforts to involve stakeholders in their monitoring programmer.

• Clear ground rules covering all aspects of development, including reclamation, will contribute to greater equality of IBAs.
• IBAs should provide for periodic evaluation of performance and need mechanisms for adaptation during implementation.
• Responsibilities of senior government often overlap with the objectives of IBAs; certain activities, such as the collection of environmental data, would benefit from harmonizing bodies of law.
• IBAs should define enforcement procedures. Dispute resolution should allow parties to resolve problems as they arise, avoiding non-compliance and penalties. The terminology used in IBAs for dispute resolution, penalties, and incentives is very important.
• Incentives-often related to money-may hasten progress on implementing IBAs. Compensation adjustments related to shortfall in meeting agreed hiring targets can work both ways.
• Aboriginal organizations must recognize the need for flexibility in setting targets. Mines are dependent on markets and government policies and IBAs need to allow for periodic adjustment of targets according to mine activity.
• IBAs should use clear and simple language and public communications about them should involve all parties.

• Aboriginal organizations need a way to access each other's experiences.
• Government should stipulate the requirements for IBAs and should prohibit clauses-such as confidentiality-that force Aboriginal communities to waive their rights.
• A role for government beyond setting a framework is controversial. Some feel the government should not be involved in actual negotiations between a company and an Aboriginal organization. Others believe the government has certain fiduciary responsibilities, especially where it has treaty relationships with Aboriginal groups.
• All members of the community should be given the opportunity to vote on ratification of an IBA.

• The Saskatchewan Multi-Party Training Plan set a 5-year goal that 50% of available jobs would be filled by Aboriginal people; they are now receiving appropriate training to meet the objective.
• A government training Programme was implemented to certify Lutsel K'e First Nation people for work at the BHP mine.
• LIA is considering filing for an affirmative action Programme under the Newfoundland human rights legislation in support of Labrador Inuit women interested in more employment, especially in nontraditional jobs.

• IBAs should address roles and responsibilities for social impact assessment.
• A social impact assessment process outlined in the Yukon First Nations' Final Agreement is being drafted into legislation; IBAs will have to reflect this process.

• Because mining is inherently unsustainable, Aboriginal communities need a diversified economic development strategy that might include negotiating IBAs and royalties in other resource sectors or investment in education and training.

The final plenary session recommended that

• a model IBA be developed for areas that do not have settled land claims;
• a forum or committee be established to develop and maintain a bibliography of resources and contacts on IBAs and act as a clearinghouse for information sharing; and
• several areas receive further research: Implications of the Delgamuukw decision on IBAs and royalties; contract law; mechanisms/conditions for successful implementation; restrictions on Aboriginal sovereignty; confidentiality issues; the role of government; the implications of international and multi-national trade agreements; and international comparisons.