Partnership Agreements to Maximize Aboriginal Participation–

Issues to Consider

Powering Up Aboriginal Energy Conference

April 23 - 24, 2012

Issue or Provision / Comments / Points of Debate
When to start? / -What stage of the development process
-Relationship building
-Lead time for capacity building and information sharing / -Problem/Challenge
-1. Social needs
-2. Corporate goals
-3. Legal obligations
-4. Economic needs
-5. Cultural/social
-6. Sovereignty
-Practical considerations: investment in the process before you know you are investing in the project
-Legal:
-Only “required” when project reaches regulatory approval stage
-First principle: Legal requirement to provide time to review to determine impacts
-May depend upon the source of the obligation:
-Government duty “downloaded” to proponent
-Sources:
-Statutory -
-1) Land Claims agreements,
-2) Oil and Gas Legislation,
-3) Environmental legislation
-4) Green Energy Act
-5) Other Statutes
-Regulatory/Policy:
-Governments make an IBA a precondition of project approval: Energy Boards
-Common law duty to consult
-Commercial and Political:
-“good neighbour”, “corporate social responsibility
-avoidance of protracted legal challenges
-need community ok for access
-Value-added return
The players: / -What institutions for which aboriginal community
-Determining the appropriate parties (direct impacts, treaty rights, benefits?)
-On vs. off reserve issues / -Legal:
-Easy if a court decision or settled land claims agreement
-Factual determination otherwise
-Which institutions:
-Inuit: decision-making by Inuit regional corporations and governments
-Métis: how identify the community - local councils, regions, provincial governing body
-First Nations: Band council, role of elders
-Principles:
-Respect the aboriginal peoples’ traditional groupings
-aggregation to the highest level (not fragmentation)
Scope of consultation / -Determining the extent of the consultation obligation / -Settled land claim
-Traditional lands
-Rights-bearing communities (Métis)
Agreements among affected communities / -Settling on scope, process, negotiation mandate, consultation / -ensures a better process
-otherwise very difficult for proponent
-Is there a “privileged” party that receives the greater benefit
Using an MOU / -An interim agreement to deal with process, capacity issues, exploratory or preliminary stages of the project
-Establish cooperation principles
-Terms of reference
-Timelines / -most crucial for capacity issues
-set ground rules
Building the negotiation teams: / -The quality of the negotiating team
-Legal, technical, financial, authority, legitimacy
-Clear mandates
-Political representatives as part of the team? / -The quality of the negotiating team “is the single most important factor” in the efficiency of the process and the quality of the outcome
-Sensitive to: context, history, emotion, culture, sovereignty
-Proponent requirement for team members understanding and being sensitive to aboriginal issues
-Separation of political entity and business partner?
The role of governments / -Use of an IBA to satisfy government duty to consult/accommodate
-At the table or kept informed
-Appropriate ministerial sign-off (licenses and permits)
-Band resolutions / -Downloading of government duties to proponents who aren’t well-suited to the task
-Developer risk for poor government consultation
-Dual approach - an agreement on economic issues and another on community well-being (done with government) (Inuit study recommendation)
Information sharing and confidentiality / -Sharing financial information
-Sharing key project information
-Providing resources to effectively use the information
-Keeping the information away from governments?
-Sharing information with the relevant aboriginal community
-Communication provisions (local communities, broader public, government)
-Translation requirements / -Tension between sharing information with broader aboriginal community and protecting confidentiality
-level of disclosure?
-Company concerns vs accountability and process of confirmation
-translation
Community consultation and capacity building / -Enhancing the ability of the aboriginal community to be a more effective partner
-Funding for the negotiating process?
-Studies during tenure of agreement? / -Conflict for proponent between a result that lasts and the cheapest result
-A better team means a more efficient and faster negotiation
-Impact knowledge gap can lead to a challenge of the quality of the consultation
-Enforceability of the agreement: level playing field during negotiations can take away claims of unequal bargaining claims in any test of the agreement
Aboriginal support clause / -An agreement not to hinder, delay or prevent the Project from proceeding
-An agreement not to object to approvals etc.
-An agreement to assist in defence of such claims
-Mandate and authority of the negotiators / -Aboriginal communities will need to understand and be aware of the effect of these provisions
-Importance of clause setting out mandate and authority of the negotiators
Compensation / -Direct payment for negative impacts
-Upfront or periodic
-Subject to review?
-Interaction with public programs / -Will money alone achieve the goals?
-Loss of income
-Relocation costs
-measuring alternative economic activities as compensation
-traditional user issues, such as,trapline displacement
-one-time up front or on-going
-measurement issues
-Assessing the agreement in context:
-1. interaction of private agreement and public programmes and
-2. Is an IBAthe “only show in town”?
-3. Other forms of agreement, including equity or royalty payments
Employment / -Preferential hiring
-Recruitment and training for long term work
-Flexible schedule for traditional activities
-Coordination with relevant unions / -On vs off-reserve issues on preferential employment
-employment quotas
-A process to identify opportunities and the skills required
-An annual employment plan
-Commitment to consult on on-going opportunities
-commitment to set reasonable qualifications
-culturally sensitive termination procedures
-imposition of similar obligations on contractors and subcontractors
-Periodic review and reporting
-Access to government programs
Education and Training / -Linkages with government programs
-Cross-cultural training
-Apprenticeship and scholarships
-School partnerships
-On-the-job training / -scholarships and bursaries
-stay-in-school programs
-coordinating with governments
-Involve public sector early (it’s a long term issue)
-But complicates negotiation schedules
-Issue: government funds only available once project approved - often too late
Economic development and business opportunities / -Contract set-asides/favoured nation status for goods and services
-Smaller scale projects for local community
-Early warning of opportunities
-Direct funding of local business / -Linkages with government programmes
-Process: Capacity building for local community - workshops on tendering, joint venturing
-Mechanisms:Specified tender procedures
-First crack provisions - time limited
-competitive bid process to contractors and subcontractors requiring “aboriginal content”
-How define “Aboriginal content” or “aboriginal business”
-Establishing a list of “pre-approved” business (Inuvialuit Final Agreement)
-Rating criteria? Who pays?
-Preferential contracting where no tender require
-Impose on contractors and subcontractors (reasonable efforts)
-Administrative challenges to on-going efforts for proponent
-Issues for proponent:
-ensuring cost-competitiveness, timely delivery, ability to supply, quality
-Business opportunities:
-workshops
-funding
-information sharing
-paying for a business development coordinator
-Research and Development
-Joint research: joint planning, funding etc.
-Right of first refusal on equipment and property on disposal
Financial and equity provisions / -Partnerships and ownership rights
-Lump sum or profit-sharing or other
-Use of government guarantee and equity programs
-Administering the flow of funds
-Ensuring a financeable project
-Tax considerations / -Is equity participation a possibility?
-Equity without cash contribution may be an issue for some government programs – see Green energy Act
-Purposes of non-equity role: compensation and garner support
-As varied and as creative as the parties want it to be
-Trend from cash to participatory and business-oriented from short-term to long-term
-Direct involvement to provide “window on the process”
-Legal entity for aboriginal participation (separation of political and business?)
-Tax, financial, legal issues for structure
-Provisions for support by aboriginal community of preferred tax treatment
-Inflation adjustment provisions
-Trust fund for community for purposes to be determined
Environmental protection / -Rule-making by affected community?
-Permitting and Licensing
-EA process and use
-Abandonment and reclamation obligations
-Minimize activity in culturally sacred areas (historic burial sites, etc.)
-Ongoing monitoring
-Remediation efforts
-Performance bonds / -Environment protection in an IBA or similar agreement vs environmental assessment process, not the same but IBA’s are often a precondition
-Community develop its own standards and incorporate?
-First Nations as resource managers: arises from treaties as agreements to share (not cede land) and rights to govern
-generic vs specific standards (“Suitable” or “Satisfactory”)
-baseline studies?
-trigger points for action
-independent monitoring - who funds?
-bonds for performance?
-financial assurances for action pending dispute resolution
-inventory of products and materials used?
-“trust funds” for mine closures and reclamation
-Specific penalties for breach?
Social and Cultural Issues / -Monitoring impacts using indicators
-Funding of community projects and infrastructure
-Funding cultural activities
-Ongoing liaison committee
-Heritage preservation / -off-loading of government responsibilities
-funding of social programs, counselling services
-soft services vs hard structures
-socio-cultural baseline studies
-role of community elders
-special provisions for women or other ‘equity-seeking’ groups
Amendment provisions / -Long term agreements
-Provide for different processes for different kinds of changes
Dispute Resolution / -Traditional knowledge
-Confidentiality
-Access to courts / -Exhaust ADR before getting to courts
-Make sure of the ADR rules - they are getting as complicated and difficult as courts
Ongoing Monitoring / -Forum for continued consultation
-Mechanisms for succession
-Membership
-Decision-making scope / -Coordination and Management Committee
-joint appointment
-evaluation reports?
Approval process / -Community ratification by referendum
-Timing of sign-off / -Ratification required?
-May depend upon community or aboriginal group, political structure and governance
-Sign-off by First Nations sometimes only after process
-How deal with community objection after ratification?
Contract Administration / -Force Majeure
-Emergency and crisis response
-Governing Law
-Other
-Enforceability?
-Standardization of terms` / -Standardization?
-Certainty for industry

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