In this Technology Review we look into the area of Impact Benefit Agreements (IBA), explain its meaning and origins, and give an overview of how they are developed and implemented.
Although an IBA is not a legal requirement, its value in promoting cooperation between First Nations, Aboriginals, and the minerals industry is now being realised.
WHAT IS AN IBA?
The primary aim of an Impact Benefit Agreement is to "address the adverse effects of commercial activities on local communities and their environments and to ensure that First Nations receive benefits from the development of natural resources located in their traditional territory".
In return for the aboriginal community's involvement in the economic benefits of the mine, the mining company receives cooperation and support from the local community for developing the local resource.
A detailed outline of the purpose and role is set in this document: http://m.gowlings.com/knowledgeCentre/publicationPDFs/IBA-January-11-Webinar.pdf
STEPS TOWARD AN IBA
The IBA is usually not the first step in the consultation process between the aboriginal group and mining company. The first steps, generally initiated by the mining company, might include:
- Analysis of the demographic and socio-cultural context of the territory affected by a project
- Identification of the traditional activities and practices of communities living there
- The projects impact on the lifestyle of the affected community
After which, the consultation process between the two groups begins, and a joint mission statement could be considered whereby the aboriginal community can put their vision and values on the record, and look for a commitment from the mining company that these values will be respected. Both parties can then set out the needs they have separately identified from this cooperation. A Memorandum of Understanding can be set out.
The memorandum of understanding (which is explained in detail in the previous link), is a written document, signed by both parties setting out their mutual concerns and intent. This document is not necessarily binding, but may form the basis for an IBA in the future.
This paper provides some historical context of the IBA in Canada and gives us an idea of when they are negotiated.
The best IBA site I have come across is the IBA Research Network whose link we include here
. Their website includes links
to other related industrial/aboriginal interest groups. They also include a list of sample agreements from past IBAs
EDUMINE ONLINE COURSES
There are no specific IBA courses in the EduMine repertoire. However, most of the skills and knowledge are listed in related courses.
e3Plus: Excellence in Social Responsibility is one such course that includes working with Indigenous peoples within the "Due Diligence and Community Engagement" Section.
Enterprise Facilitation is a course on the methodology behind promoting a sustainable community development by focusing on the "creation of a parallel economy in the impacted community". This is one of the principle goals of the IBA, thereby making this course highly relevant.
Environmental Excellence in Exploration deals with community engagement during the exploration phase. This Prospectors and Developers Association of Canada (PDAC) course promotes environmental practices with well field-proven guidelines on exploration activities.
INFOMINE LIBRARY (OTHER PUBLICATIONS)
There are currently eight IBA related publications in the InfoMine Library
. They deal with broad issues, varying nationally as well as internationally, and specific cases throughout Canada. Courtney Fidler looks into the involvement of the Tahltan Nation in the Galore Creek Project, British Columbia in her Master's Thesis
which focuses on how the "Tahltan utilised the EA and IBA to participate in the mineral development".
O'Faircheallaigh's paper brings our attention to very similar issues that are faced by indigenous groups in Australia. He talks about the hazards of negotiation in terms of maintaining community unity under a confidentiality clause, strengths of the community in delaying or halting proposed projects and the looking at all options including a "no agreement" situation which is usually not considered.
While the government is often not directly involved with the negotiation of an IBA, they often do provide funding to support the agreement's plans for environmental conservation and economic development. For example, here is a news release from Environment Canada
announcing the completion of an Inuit Impact Benefit Agreement and $8.3 million in funding.
In the past IBAs were negotiated by the government directly with the mining company, however today it is more common for the mining company to talk directly with the indigenous group. In this way the aboriginal people have a better feel for the importance of their own terms of negotiation, and better community involvement with the project is implied. Government involvement is largely confined to the environmental regulation of a project.
FIRST NATION RESOURCES FOR NEGOTIATING AN IBA
For aboriginal groups who are in the process of negotiating an IBA or are in the early stages of consultation with a resources company, there are a number of resources that are available online
. The IBA Research Network (which we have mentioned earlier) provides links to all the major interest groups, including First Nations and also the mineral industry, for a different perspective.
Assistance in the drafting of an IBA also comes in the form of this publication
. In addition there are also the publications from O'Faircheallaigh and Fidler located in the InfoMine library, which we have already mentioned.
CONSULTATION FOR IBAs
When negotiating an IBA, technical knowledge of the details of the project is often required. This may not be found within the local community so external consultants may be required to increase their knowledge base. In addition, reviews of the IBA may be required from time to time. This publication
is an example of a Nunavut land claims organisation looking to consultants to review the IBA and hence determine whether the contract has been honoured.
LAWYERS FOR IBAs
While the consultant may advise on what is contained in the legal document, the IBA will ultimately have to be drawn up by a lawyer. There are a number of lawyers who practice in aboriginal affairs and deal with Impact Benefit Agreements. These are the professionals that will have to be engaged in completing an IBA.
Canada is not unique in the practicing of using IBAs when in brokering agreements between the aboriginal peoples and resources companies. In Australia, there also has been a history of these deals, however according to O'Faircheallaigh
, they are varied in the level of compensation depending in which Australian state or territory they're located in.
from the same author is also worth including in this section due to its relevance to Australian as well as Canadian IBAs.
ARE IBAs WORKING?
Whether IBAs are working depends on a number of factors. They certainly offer an opportunity for all involved to receive a mutually beneficial outcome. Whether both parties will be satisfied with its implementation is different matter, and in this instance satisfaction is the measure of success. In practice, every IBA is different and so it is difficult to compare like with like. Even if you were to contrast the opinions of the different stakeholders in the same IBA, your answer may not be as clear.
Here are the opinions of some professionals who have conducted research into the success of IBAs . They have known the industry for much longer than I have and their opinions should be more valid. I also offer some opinions of others in the mining industry, and some aboriginal groups for a further balanced view.
OTHER TECHNOMINE RESOURCES
A related Technology Review on Treaties, Mining & International Law
is also available for view in TechnoMine. While this is not specific to IBAs, it does mention aboriginal treaties and is a worth a read in conjunction with this piece.
One of the most important documents we provide a link to in this Technology Review is the IBA Community Toolkit
. This toolkit looks at the IBA from the point of view of the aboriginal community and provides, a step by step description of the processes, procedures and even pitfalls that can occur throughout the IBA.
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