It is axiomatic that it is as important to know the objective priorities of the opposite party to a negotiation as it is to know your own. This applies particularly to negotiations with aboriginal groups because, in many cases, their objectives and priorities will be both foreign and inscrutable to mainstream North American business. We make this point because agreements in principle haveveeen reached between the government of Canada and each umbrella group representing the aboriginal people of the Yukon and Northwest Territories. Therefore, successful mine development in the north will require special sensitivity to the issues and concerns of Canada’s aboriginal groups.
Fortunately, the agreements in principle significantly reduce the risk of confrontation between the mining industry and aboriginal groups. This risk is an important factor in mineral exploration and development in the provinces (particularly in British Columbia).
The agreements provide that title to large tracts of land will be conveyed by the federal government to aboriginal people and that hunting and fishing rights be granted over yet larger areas. In many cases, the mining industry will find it necessary to negotiate the purchase of mineral and surface rights from native groups.
The Territorial legislatures, whose majority membership is aboriginal, probably will acquire increased authority as the Territories progress toward provincial status. For these reasons, mining must develop an understanding of the goals and values of native people and address those issues in the context of any mineral development of the Canadian Arctic.
Aboriginal groups in the Canadian Arctic are diverse in many respects. It is a tribute to all who were involved in the negotiations that agreements in principle have been reached with each of the five umbrella groups representing the aboriginal people of the Arctic. The five groups are:
* The Inuvialuit — a relatively homogeneous group of aboriginal people, whose traditional territory was the coast of the Arctic Ocean from a point roughly north of Great Slave Lake west toward Alaska and the Arctic islands north of that stretch of coastline, including the western part of Victoria Island;
* The Council for Yukon Indians — representing aboriginal people, whose traditional territories cover all the Yukon except the relatively narrow strip along the coast of the Arctic Ocean;
* The Dene Nation — whose traditional territory was the southwestern part of the Northwest Territories, including Great Bear Lake and Great Slave Lake;
* The Metis Association of the Northwest Territories — whose members are descended from the progeny of Caucasian settlers and aboriginal people. (The Dene and Metis have reached agreement between themselves and with the federal government to share the western part of the Northwest Territories.); and
* The Tungavik Federation of Nunavut — whose traditional territory was the portion of the Northwest Territories east and north of the Dene and the islands of the eastern Arctic, including Baffin Island, Ellesmere Island and the eastern part of Victoria Island.
The Inuvialuit final agreement is the only such agreement ever concluded between the government and an aboriginal group in the Canadian Arctic. It is reasonable to assume that similar provisions will be included when final agreements (implementing the present agreements in principle) are reached with other aboriginal groups.
The aspects of the agreement of the greatest interest to the mining industry are as follows:
* The Inuvialuit are granted title to 5,000 square miles of territory (specifically identified), including most mineral rights.
* The Inuvialuit are granted a further 30,000 square miles of territory (specifically identified), including most mineral rights.
* The grant of 5,000 square miles is subject only to those existing rights identified in the agreement.
* The grant of 30,000 square miles is subject to certain specific existing rights and to all existing rights previously granted under the Territorial Lands Act.
* The Inuvialuit are granted title to the beds of all watercourses, but title to the water is reserved by the government of Canada.
* The lands to be transferred and money to be paid by the Canadian government are to be delivered to the Inuvialuit Regional Corp. (IRC), which is owned and directed by the Inuvialuit. It has three subsidiaries: the Inuvialuit Land Corp. (ILC), to which it will transfer the land; the Inuvialuit Development Corp.; and the Inuvialuit Investment Corp. — as well as a division, the Inuvialuit Land Administration (ILA). The Inuvialuit lands may not be sold, but leases and mineral interests may be granted.
* Existing mineral tenures, protected by the agreement, will continue to be administered by the government on behalf of the Inuvialuit, unless and until the holder of the tenure and the ILC agree on direct administration.
* Environmental and safety standards for development of lands alienated by the ILC may be established by the ILA.
* Before access is granted for mineral exploration or development, the ila may require the developer to enter into a participation agreement providing economic, social and educational benefits for the Inuvialuit. The agreement provides for arbitration if the parties are unable to agree on terms.
* All development proposals are required to be submitted to the Environmental Impact Screening Committee (EISC), which will have three Inuvialuit members, three government-appointed members and a neutral chairman. Unless the EISC is satisfied that existing statutory review processes are sufficient to protect the environment and wildlife and fisheries resources, it is required to refer the proposal for review by a similmily constituted Environmental Impact Review Board (EIRB), which has authority to regulate the project.
* Resource developers are absolutely liable (without proof of fault or negligence) for adverse impacts upon wildlife harvests caused by their projects and must pay both the cost of remedial measures and compensation to Inuvialuit who are adversely affected. The developer is required to post a bond to secure this obligation prior to undertaking the development.
* Because land claims settlement agreements are protected by the Canadian constitution, no government has any authority to legislate any variation of, or exemption from, the agreement; nor can such a variation or exemption be negotiated with the Inuvialuit.
Other Agreements
As one would expect, there are many differences between the Inuvialuit Final Agreement and the three remaining agreements in principle, and space does not permit a detailed discussion of each. Final agreements with the Yukon, Dene-Metis and Nunavut groups will not be reached for several months and must generally follow the present agreements in principle.
One point of particular significance is that the rights of the Inuvialuit are confined to the lands conveyed to them by their agreement. By contrast, the Dene-Metis agreement in principle contemplates that certain lands will be conveyed to them, but that they will be granted hunting and fishing rights over much larger areas. An important element of the final agreement with Dene-Metis will be the process for resolving incompatibiiities between Dene-Metis hunting and fishing rights and mineral resource exploitation.
Even the most cursory review of the Inuvialuit Final Agreement makes it clear that, in future, industry will be required to adapt its developments to fulfill the objectives and priorities of aboriginal people in the Arctic.
Aboriginal groups are diverse ethnically and culturally and in their levels of educational and economic sophistication. It cannot be assumed that a project that fully addresses the objectives and priorities of one group will be considered satisfactory by another, even when the two groups are members of the same umbrella organization and parties to the same comprehensive land claims settlement agreement. There is no substitute for detailed knowledge of local conditions that affect native land claims.
Exploration cannot be undertaken on Inuvialuit lands without permission of the ILC and the conclusion of a participation agreement approved by the ILC. The initial approach must be to these bodies. We suggest that an approach should be made jointly by the developer, the ILC and the ILA to local aboriginal communities at a very early stage in the discussions. Under the terms of the Inuvialuit Final Agreement, each local aboriginal community is represented by its own development corporation, which is a shareholder of the Inuvialuit Regional Corp.
The initial approach should be directed to learning the objectives and priorities of the local inhabitants. These vary widely from one community to another.
Native Priorities Vary
Some aboriginal groups are entrepreneurial. They are less interested in royalties or lease revenues than in the opportunity to develop and demonstrate their expertise in a particular business. For example, the Tahltans in northwestern British Columbia take justifiable pride in their skills at construction of industrial roads. They would prefer a road-building and maintenance contract (at attractive rates) to cash payments for a right of way. At the opposite end of the spectrum, some aboriginal groups would prefer to prohibit industrial development entirely, and to preserve (to the extent possible) their traditional hunter/gatherer economy.
The successful resource developer in the Canadian Arctic will listen carefully to local communities and will seek ways to demonstrate that his project will serve the goals and priorities of those communities.
Those aboriginal groups that are entrepreneurially motivated have become increasingly sophisticated in recent years. There frequently exists a divergence of interest between mining (whose projects tend to be of finite duration) and the local community (which looks for a sustainable economic base). Negotiating success with this type of aboriginal group often depends on the identification of opportunities to use the mining industry to develop local installations and facilities and to teach marketable skills to the local community. These are issues that have been addressed by the mining industry many times in the past in a wide variety of local conditions.
The distinguishing factors of resource development on aboriginal lands are:
* the local community is the owner of the resource; and
* the local community has neither the ability nor the inclination to relocate when the project reaches the end of its economic life.
* Aboriginal groups will expect the mining industry to present development proposals that address the fate of the community in the long term.
It must not be assumed that aboriginal groups will consider economic development to be an unmixed blessing. Native culture is a topic expressly and seriously addressed in the land claims settlement agreements, and its preservation and protection are the primary objectives of aboriginal groups. There is a legitimate and widely held concern that economic advancement will be attained at the cost of traditional culture and values. This concern is frequently the cause of tension within local communities. The successful negotiation of a mineral interest requires an understanding of the disparate interests withhn the community. In one case in which the writers were retained, the band council was concerned that the mine access road would lead to excessive hunting, not by the community at large but rather by the band members themselves. The issue was resolved by posting security personnel who allow access only on production of a permit from the band council.
It is strongly recommended that developers refrain from involvement in the internal discussions of aboriginal groups. The developer should seek to learn as much as possible about individual priorities of local residents, but he should limit his negotiations to official representatives. Fortunately, it appears that each land claims agreement in the Canadian Arctic will provide for the creation of native corporations with which negotiations can be carried on.
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