A proposal for solving disputes between miners and First Nations
- A proposal for solving disputes between miners and First Nations
A made-in-B.C. standardized process that all parties can agree to is needed if agreements are to be made more quickly and at less cost
BY MERLE ALEXANDER AND ROBIN LONGE, SPECIAL TO THE SUNAPRIL 20, 2013
Bringing aboriginal peoples and exploration-mining companies together efficiently through negotiated agreements is too often a promise unachieved in British Columbia and Canada.
The perilous path of activism, public protest and ultimately court action associated with mining projects appears to be on the rise.
Most experienced professionals working in this area, however, believe successful aboriginal consultation is a value-added asset to any project, not a liability nor an unnecessary expense.
If we are all of similar mindset, then, why has the negotiation process become increasingly expensive, with few projects achieving their ultimate goal: project support and consent by affected aboriginal peoples?
The answer may lie in the lack of a reliable process for getting to "yes."
This provides British Columbia with an opportunity to foster an environment of respect, efficiency and sustainable prosperity. Such an approach might include the following:
Development of standardized template agreements
Other industries have learned through experience that one of the keys to efficiency in transactions is through standardized agreements. To date, however, no standardized approach to First Nations/mining negotiations exists. Although the negotiation of benefit agreements has become the norm, no normative set of agreements has emerged that is universally supported by either First Nations or industry.
Development of a series of standardized agreements for the initial stages of exploration and mine development would greatly reduce transaction costs for all involved. Unfortunately, the current process where First Nations and companies negotiate agreements in isolation fails to draw on the collective negotiation experience. Both industry and First Nations have their own templates, but the sides have yet to work together to reconcile them.
One way to develop standardized agreements would be to request that representative organizations, such as the BC First Nations Leadership Council and the Association of Mineral Exploration of B.C., prepare a short list of First Nation, industry and governmental negotiators.
From this list, a technical working group could be developed to prepare initial draft agreements, including: engagement agreements for early stage exploration; memorandums of understanding from exploration to mine development; and comprehensive framework agreements for the life of mine and post-mine closure.
The next stage would require each representative negotiator to conduct internal consultation within their organizations. Through this consultation process, the draft template agreements would be revised to accommodate key concerns, thereby gaining broad support among First Nations and industry alike.
Development of alternative dispute resolution mechanisms
In the negotiation and implementation of First Nations/ mining agreements, the parties often opt for alternative dispute resolution mechanisms, such as advisory committees, mediation and arbitration. The costs associated with these mechanisms are generally borne by the individual parties. To reduce these costs, we would suggest that a roster of experts with particular expertise in aboriginal relations be developed to help work out disputes. This may also provide a longer-term opportunity for facilitated negotiations of agreements across the province.
Legal requirement for agreements
Canadian courts have developed a difficult legal landscape for project proponents to manoeuvre in light of the Crown's obligations to aboriginal peoples. On the one hand, courts have resoundingly concluded that third parties do not owe a duty to consult with aboriginal peoples, there is no legal duty to reach an agreement, and aboriginal peoples do not have a right of veto where their rights are merely asserted, but not proven. On the other hand, courts have required project proponents to negotiate with aboriginal peoples, issued injunctions against exploration permits where the Crown has failed to consult, and struck down the free entry system for the initial recording of mineral claims in at least one jurisdiction.
It may be time for the B.C. government to take the lead by creating a legal requirement for exploration and mining proponents to have negotiated agreements in place at key points in mine development before projects are permitted to advance.
For instance, a company might be required to enter into a community engagement agreement before it can obtain an exploration permit, or a memorandum of understanding before a small mine permit is granted. There is precedent for this approach in other Canadian and Australian jurisdictions, and this may be a way to create legal certainty for mining projects in B.C.
It has been more than 15 years since the Supreme Court of Canada noted that "we are all here to stay." Perhaps it's time to consider if we should stay the course on negotiations over mining projects, or if we could do more with fewer constructive words.
Alexander and Longe are lawyers with Vancouver law firm Bull Housser. Longe specializes in natural resources and aboriginal law. Maya Stano, a lawyer completing her articling, contributed.
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