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Increasing the Sustainability of a Resource Development: Aboriginal Engagement and Negotiated Agreements



While the role Aboriginal people play in environmental governance programs are often underpinned by the Crown, Aboriginal peoples are ratifying negotiated agreements with mining proponents to ensure their issues and concerns are addressed. This paper examines Aboriginal participation in mine development to show how more inclusive social and environmental development models can support a more sustainable development. Through two complementary processes, negotiated agreements and environmental impact assessment, Aboriginal peoples are maximizing their benefits and minimizing the adverse impacts of a project to create a more sustainable resource development. Case study analysis of the Galore Creek Project in northwestern British Columbia, Canada, illustrates how environmental impact assessment and negotiated agreements can co-exist to positively contribute to a successful mineral development, and hence operationalize sustainability within this context. KeywordsNegotiated agreements-Mineral development-Aboriginal-Environmental impact assessment-Canada
Increasing the sustainability of a resource development:
Aboriginal engagement and negotiated agreements
Courtney Fidler
Received: 20 January 2009 / Accepted: 31 March 2009 / Published online: 16 April 2009
Ó Springer Science+Business Media B.V. 2009
Abstract While the role Aboriginal people play in environmental governance programs
are often underpinned by the Crown, Aboriginal peoples are ratifying negotiated agree-
ments with mining proponents to ensure their issues and concerns are addressed. This
paper examines Aboriginal participation in mine development to show how more inclusive
social and environmental development models can support a more sustainable develop-
ment. Through two complementary processes, negotiated agreements and environmental
impact assessment, Aboriginal peoples are maximizing their benefits and minimizing the
adverse impacts of a project to create a more sustainable resource development. Case study
analysis of the Galore Creek Project in northwestern British Columbia, Canada, illustrates
how environmental impact assessment and negotiated agreements can co-exist to posi-
tively contribute to a successful mineral development, and hence operationalize sustain-
ability within this context.
Keywords Negotiated agreements Mineral development Aboriginal
Environmental impact assessment Canada
1 Introduction
This paper examines Aboriginal participation in mining and discusses how more inclusive
social and environmental development models can support a more equitable and sustain-
able development. Aboriginal participation and engagement is examined in the Canadian
resource climate through two complementary research areas: (1) negotiated agreements
(NAs), commonly referred to as impact and benefit agreements (IBAs); and (2) environ-
mental impact assessment (EIA). Both mechanisms have the ability to simultaneously
Readers should send their comments on this paper to: within 3 months of publication
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C. Fidler (&)
Department of Geography and Planning, University of Saskatchewan, Kirk Hall,
117 Science Place, Saskatoon, SK S7N 5C8, Canada
Environ Dev Sustain (2010) 12:233–244
DOI 10.1007/s10668-009-9191-6
shape and inform the direction of a prospective development, although via different routes.
EIA is governed by legislation and overseen by federal and provincial regulatory agencies,
while NAs arise as a result of voluntary negotiation
between an industry proponent and
Aboriginal group.
Environmental impact assessment is a universally recognized and important predictive
tool that highlights potential environmental and social impacts early in the planning and
design stages of development, thus enhancing the prospects for a sustainable development.
NAs on the other hand, are bond-based partnerships between industry and an Aboriginal
group that provide a suite of provisions and tools for long-term planning and co-existence
on the land. NAs vary immensely based on project parameters, signatories’ objectives, and
the wider legal context of judicial and regulatory systems.
An effective bi-lateral relationship between industry and an Aboriginal group is crucial
for building trust, respect, and long-term certainty. However, the government influences
interactions between the two parties as it performs its formal role in statutory and legis-
lative affairs. This paper therefore examines the tripartite relationship between the Crown,
Industry and Aboriginal group, to understand the web of interactions that occur within the
context of mineral development and environmental management. The complex web of
existing relationships result from a range of values systems, historical interactions,
underlying decisions related to mining, land use tenure, and the way in which the natural
environment is managed. Only by examining the interactions between all three parties, one
can determine how EIA and NAs co-exist, and how both can positively contribute to a
successful and sustainable mineral development.
The premise of this paper is structured on a statement made by the International Council
on Mining and Metals
(ICMM 2009): ‘successful mining and metals operations require
the support of the communities in which they operate now, and in the future, to ensure
continued access to land and resources’ (Render 2005). The aim of this paper is to
examine the necessity for relationships between industry and Aboriginal communities to be
founded on respect, meaningful engagement, and mutual benefit.
Evolving engagement standards are exemplified in this paper through a best practice
case study analysis. The Galore Creek Project in northwestern British Columbia
(BC), Canada, on traditional Tahltan territory is examined to illustrate how proactive
and inclusive approaches between the proponent and Tahltan Nation gave rise to a
partnership. This paper offers a formal assessment through a multi-method research
approach performed by the author for her MASc thesis (Fidler 2008) to describe the
transactional approach parties took vis-a
-vis the NA and EIA.
2 Background
Legal jurisprudence over the last three decades has transformed the resource sector con-
siderably (Howlett et al. 2005). Recent Canadian case law on consultation and accom-
modation standards with Aboriginal peoples, including Haida Nation v. British Columbia
(2004); Taku River Tlingit First Nation v. British Columbia (2004) and Mikisew Cree First
There are some modern land claim settlements in which proponents must negotiate and complete NAs
with the regional government before proceeding with mineral development.
ICMM is a CEO-led organization representing many of the world’s leading mining and metals companies
as well as regional, national and commodity associations. ICMM members are committed to the responsible
production of the minerals and metals society needs.
234 C. Fidler
Nation v. Canada (2005) have espoused new standards from existing legal doctrines
further clarify the role and responsibilities of government, industry, and Aboriginal groups
(Isaac and Knox 2004). Internationally, emerging Indigenous rights declarations (United
Nations Declaration on the Rights of Indigenous Peoples 2007, and International Labour
Organisation Convention No. 169 on Indigenous and Tribal Peoples), as well as policy
standards (United Nations Guidelines on the Protection of the Cultural Heritage of
Indigenous Peoples), similarly demonstrate progress toward protecting and respecting
Indigenous Peoples. Issues related to cultural survival and the protection of Aboriginal
rights, alongside other societal concerns such as the introduction of sustainable develop-
ment concepts, have strengthened the credibility of Aboriginal groups to challenge the
dominant economic focus of mineral and resource development.
Theoretically, there are different ways of understanding sustainability and sustainable
mineral development, and the ambiguous nature of sustainable development has allowed
for academics and policy makers to deconstruct and reconstruct the concept in the hope of
clarification (Gibson et al. 2005). The concept of sustainable development is contested, and
undoubtedly will continue to be (Jabareen 2008), particularly when the concept is applied
to an industry that has such a direct impact on the natural environment. Mineral projects
clearly highlight that sustainability and its variants, sustainable development and sus-
tainable mining development, are controversial and ambiguous terms in a non-renewable
mineral development scenario (Saleem and O’Faircheallaigh 2007). This paper acknowl-
edges that a mineral life cycle is relatively short, yet there are inclusive planning processes
to avoid boom-bust scenarios, improve the equitability of a development, and operation-
alize sustainability within this context (Walker and Howard 2002).
Just as the increased frequency of NAs signals recognition that historical resource
development practices that marginalized and dispossessed Aboriginal peoples are no
longer tolerable (Warden-Fernandez 2001; Weitzner 2002), the concept of sustainability
also represents an ideological shift that begins to integrate ecological and social concerns
in policy recommendations and evaluations (Howarth 2007). Aboriginal peoples have a
holistic and inter-related understanding of social, cultural, and environmental categories
(Berkes et al. 2000), and by applying distinct categories, the western construct of sus-
tainability often lacks real validity. The term sustainability will therefore be referred to
liberally, with emphasis on how the Tahltan Nation envision sustainable development and
implement their principles in a pragmatic manner through resource development policies.
3 Environmental impact assessment and consultation
The purpose of an EIA in its current legislated form is to minimize or avoid adverse
environmental impacts before they occur, and incorporate environmental factors into
decision-making (CEAA 1992). EIA’s theoretical base has become increasingly sophisti-
cated, and more recently core decisions have been based on the ultimate goal of sustainable
development (CEAA 2006; Gibson 2000). For example, the Voisey’s Bay Project in
Labrador on the traditional territory of the Inuit and Innu became the first EIA in Canada to
adopt sustainability-based criteria (Gibson et al. 2005). The traditional command-control
regulatory approaches to prevent environmental degradation and solicit Aboriginal (and
public) participation are being replaced by more strategic and iterative EIA models
(Gibson 2002). Moreover, the evolving participatory framework of EIA seeks to
The Crown’s fiduciary duty to Aboriginal peoples and the ‘duty to consult’.
Aboriginal engagement and negotiated agreements 235
incorporate the local concerns Aboriginal communities have into decision-making, thus
improving the chances of a development achieving sustainability with respect to social
criteria. In practice, however, EIA varies widely in quality with good EIA often depending
on public scrutiny, pressure and participation (Sinclair et al. 2008), which can be highly
variable (Doelle and Sinclair 2005).
The role Aboriginal people play in EIA and environmental governance programs are
underpinned by the Crown—the sovereign authority in all matters of resource development.
The process to address Aboriginal rights to lands and resources in Canada exists within a
dynamic evolving relationship with many actors interacting on many levels. From a hierar-
chical top-down perspective, there is a solid and regulated framework that offers a legitimate
representative structure for engaging Aboriginal people in mineral development. Namely,
consultation delegated by the Crown and carried out in the federal and provincial statutory
EIA process. In practice, however, this is often controversial because the degree of required
consultation is determined by the Crown, based on its understanding of how a potential or
established Aboriginal right or title may be infringed by the project. While Aboriginal and
treaty rights are constitutionally protected, they are not absolute, meaning these rights can be
infringed upon, if justifiable under the right circumstances (R. v. Sparrow 1990).
Recent court decisions (Haida Nation v. British Columbia 2004; Taku River Tlingit
First Nation v. British Columbia 2004) have influenced how reconciliation will play out
through consultation, and how the rights and interests of Aboriginal peoples will be bal-
anced with those of the Crown and other Canadians. Case law regarding consultation with
Aboriginal peoples in Canada continues to experience reform and currently maintains the
premise that the duty to consult is the responsibility of the Crown. However, the Crown can
delegate procedural aspects of consultation to industry proponents (Haida Nation v. British
Columbia 2004) seeking development. In Haida v. British Columbia (2004), the Supreme
Court of Canada clarified consultation standards, espousing the distinction between the
Crown’s duty to consult with the voluntary adjunct option to consult, which ‘is open to
industry in order to improve community or business relations’ (Isaac et al. 2005). This
means that the Crown has a legal obligation to honour and respect its fiduciary relationship
with Aboriginal peoples by virtue of principles set forth in the Canadian Constitution 35(1)
and common law, but can engage industry to assist in fulfilling these objectives. While the
Crown has the responsibility to consult and accommodate Aboriginal peoples to avoid
infringement of rights, title and interests, industry has increasingly taken up the role, and is
acting as the surrogate to the Crown (Fidler 2008). As of late, industry is especially prudent
to be informed and well versed in case law decisions regarding consultation, as they have a
direct impact on how business is expected to proceed.
4 Negotiated agreements
Governments in Canada support NAs because of their practical use in furthering com-
munity relations, providing economic benefits to Aboriginal communities and providing
some degree of stability between such communities and project proponents (Isaac and
Knox 2004). In 2008, the Canadian Aboriginal Mineral Association (CAMA) announced
that there were over 120 NAs
in Canada.
These agreements exist between industry and aboriginal communities each with different objectives and
are variously known as impact and benefit agreements, cooperation agreements, access agreements, par-
ticipation agreements, supraregulatory agreements, etc.
236 C. Fidler
NAs are concerned with a multitude of complex interactions triggered by a mineral
development, and since their inception four decades ago, NAs continue to evolve as
(amendable) comprehensive socio-cultural, economic, and environmental contracts. Pro-
visions may include royalties and equity payments, environmental initiatives (e.g. waste
disposal, monitoring and land use planning), social investment (e.g. traditional knowledge
(TK)), cultural heritage management plans, and acknowledgment of legal provisions with
respect to the Aboriginal group’s relationship with the Crown (Gibson 2008; O’Fair-
cheallaigh 2007; Sosa and Keenan 2001). Commonly, NAs include preferential employ-
ment and business contracts (Kennett 1999) that can act as an affirmative action plan to
initiate a partnership development and provide Aboriginal peoples with a level of influence
over the project. While the content of agreements varies considerably on a project to
project basis, the following offers some explanation as to why NAs are common place in
mineral development.
Proponents want certainty in the mine approval and EIA process and to see their project
come into fruition. The existence of NAs to maximize certainty by enabling cooperation
through reciprocity and the binding of promises would otherwise be difficult for industry to
achieve exclusively through the Crown. Industry is aware that simply obtaining the req-
uisite certificates, licenses and approvals to construct and operate a mine is only part of the
overarching approval process. For the mining industry, which is time (commodity cycle)
sensitive, it is imperative to have a social licence to operate and to ensure that business
proceeds effectively with minimal uncertainty and opposition.
Aboriginal peoples are using NAs to (1) pick up on the absence of legislative hooks in
the EIA process (particularly in the realm of socio-economic and cultural issues, for
example cumulative impacts); and (2) to further aspirations and objectives of the com-
munity beyond what is made affordable by the Crown as the regulator and provider. Under
various circumstances, NAs can act as a layer of protection for Aboriginal rights, title and
interests and can acknowledge issues Aboriginal peoples have that the Crown cannot or
will not address. NAs can help in minimizing adverse impacts, while simultaneously
creating economic and employment opportunities for the community within the broader
market economy (Fidler and Hitch 2007).
The EIA and NA can be conceptualized as parallel processes on parallel tracks. NA
discussions occur at a local level and are voluntary, whereas EIA and consultation with the
Crown occur at a Provincial and Federal level are prescribed. As much as the two tend to
overlap, they are in theory, separate processes with different objectives.
Notwithstanding the Crown’s fiduciary duty toward Aboriginal peoples, exploration
activities on Aboriginal treaty or traditional lands do not always trigger the Crown to be
involved and consult. It is then in industry’s best interest to engage with the local com-
munity, align corporate interests with the values of society (Esteves 2008) and instigate a
framework for information sharing to precede and fold into the regulatory EIA process.
This proactive approach reflects the fact that mineral exploration can adversely impact
communities, and companies that attend to Aboriginal interests at the exploration stage
(pre-EIA) are more likely to proceed successfully to the development stage. The need for
more certainty with respect to land tenure and project development has therefore led many
mining proponents toward negotiating NAs, with Aboriginal groups willing to negotiate to
remedy perceived EIA deficiencies (Galbraith et al. 2007) and help secure their rights
(proven or potential), title, and interests.
Aboriginal engagement and negotiated agreements 237
4.1 Sequencing: negotiated agreements and environmental impact assessment
The temporal component of NAs is important. From the vantage point of Aboriginal
peoples, the legislated consultation process often comes after industry has gained access
and is exploring in the area. Therefore, infringement can occur upon Aboriginal rights, title
or interests long before the Crown is involved and the EIA process is triggered. NAs
therefore offer Aboriginal groups the opportunity to become involved earlier in the process
and negotiate involvement over the entire lifespan of a mine from exploration through
construction, operation and decommissioning.
Not surprisingly, NAs can play a pivotal role in framing the relationship between
industry and the potentially affected Aboriginal group. Timing and leverage, including the
bargaining power of each party, varies significantly based on the potentially affected
Aboriginal groups’ relationship with the Crown, regulatory specifics, and issuance of
permits (Trebeck 2007). Positive actions that mining companies take early on to demon-
strate respect for Aboriginal culture and decision-making bodies help lay the foundation
for a partnership that is sensitive to both parties’ short- and long-term goals. What follows
is a look at the Tahltan Nation’s experience with the proponent NovaGold in the case of the
Galore Creek Project.
5 Applications: case study inquiry of Galore Creek
The Tahltan Nation of northwestern BC has a long history of mining, and substantial
mineral deposits extend across their Traditional territory ((IISD) 2004). The mineral value
attributed to this northwestern region of BC lends credence to its name, the ‘Golden
Triangle’, as there are many proven deposits of gold, copper, molybdenum, coal, and other
valuable minerals (Hipwell et al. 2002). Various initiatives, policies, and goals carried out
by the Tahltan Nation reflect how the Nation seeks to advance sustainability by being a key
participant with current and future mineral development (International Institute for Sus-
tainable Development (IISD) 2004).
5.1 Methodology
A multi-method research approach was used for this paper. Key informant interviews
were conducted to elicit knowledge from members of the Tahltan Nation, the proponent,
Government, and environmental consultants directly involved in the project’s EIA or
NA. Interview data were triangulated with primary (EIA Baseline Studies and reports
and the project’s NA) and secondary (scholarly literature) data in an attempt to increase
the validity of research results. However, as with any social research study, data limi-
tations and assumptions exist which include (but are not limited to): the scope of the
research, key informant’s responses, the author’s interpretation of results, and personal
The Galore Creek case study was selected because it offers several unique criteria to
build an analysis on:
It is a recent project that reflects the contemporary resource development climate and
regulatory process in Canada;
It involves a tripartite relationship between the Aboriginal group, Crown, and
238 C. Fidler
It is situated in the traditional territory of the Tahltan Nation;
It involves both NA and EIA.
5.2 Mineral development and the Tahltan Nation
The Tahltan Nation has always identified itself as a distinct society that is tied to the land
both in the past and future (International Institute for Sustainable Development (IISD)
2004). The Tahltan have never formally relinquished or surrendered the lands and
resources within Tahltan territory, and continue to occupy the land and use resources,
exercising title and rights as Aboriginal people and their interests as Canadians.
While some claim the pressures from the mineral industry have prevented the Tahltan
Nation from dealing with historical grievances, others claim that the mineral industry pro-
vides a vehicle to pursue the Nation’s goals through the flow of economic resource benefits
(Tahltan member, pers. comm. in Fidler 2008). The Nation’s four goals are: environmental
stewardship, economic self-sufficiency, self-determination, and healthy communities. In
order to advance these goals, the Tahltan have focused their attention toward using the wealth
created by the mineral economy to leverage benefits and ensure development occurs on terms
compatible with Tahltan standards. The Tahltan Resource Development Policy (1987)
became the first policy statement that Tahltan advocated industry adhere to, and is based on
eight principles. Touching on contracting opportunities, equity participation, and positive
impacts outweighing negative impacts, this policy document provides a framework to
advocate how resource development shall proceed so that it does not disrupt or adversely
impact the Tahltan Nation (International Institute for Sustainable Development (IISD) 2004).
Another influential initiative is the Tahltan Heritage Resource Environmental Assessment
Team (THREAT), a group that employs Tahltan expertise to provide direction to industry and
government on how to better protect the heritage, culture and resources of the Tahltan Nation.
5.3 Project parameters: Galore Creek project
The Galore Creek copper and gold deposit was initially discovered in the 1950s, but the
remote access to the site, and absence of grid power created challenges to proceeding with
extraction. Extensive exploration work was completed on the property by major mining
companies from the 1960s onwards, and in 2003 NovaGold optioned the property and
began extensive exploration, engineering and environmental evaluation (British Columbia
Environmental Assessment Office (BC EAO) 2007). Galore Creek’s EIA considered the
effects of the project in all mine life cycle stages, including construction, operations
(maintenance or modifications), decommissioning, closure and post-closure (British
Columbia Environmental Assessment Office (BC EAO) 2007).
The project triggered a Provincial EIA and a Federal EIA because various aspects of the
project required statutory and regulatory approvals by Natural Resources Canada, Fisheries
and Oceans Canada, Transport Canada, and Environment Canada. The project’s British
Columbia Environmental Assessment Act (2002) (BC EAA) and Canadian Environmental
Assessment Act (CEAA) (1992) were harmonized in accordance with the Canada British
Columbia Agreement for Environmental Assessment Cooperation (2004). The BC Envi-
ronmental Assessment Office (BC EAO) and CEAA provided funding for the Tahltan to
participate in a technical working group and project review. In 2007, three years after
initiating the comprehensive review, the Galore Creek Project received an EIA certificate
from the Province of BC as well as federal CEAA approval ((BC EAO) 2007).
Aboriginal engagement and negotiated agreements 239
5.4 Unbundling the negotiated agreement
The Galore Creek NA was instrumental in defining how the Tahltan and proponent would
collaborate to achieve EIA approval. The Tahltan’s involvement in the EIA was solidified
in the NA, which was ratified
mid-way through the EIA process, with negotiations
beginning prior to the EIA being triggered (Fidler 2008). The NA facilitated communi-
cation from the Nation, through THREAT, and identified environmental effects and
impacts of the project on Tahltan Nation title, rights and interests, and proposed methods to
avoid or minimize such impacts.
From the vantage point of the proponent, the Galore Creek NA helped map out how
regulatory approval would be achieved with the support of the Tahltan Nation. This
foundation was particularly advantageous for developing certainty in respect to gaining
EIA approval, as the partnership demonstrated to the government that support on behalf of
the Tahltan had been established. While the proponent was guaranteed Tahltan fulfillment
of objectives (ostensibly critical for EIA approval), the Tahltan were able to identify
potentially adverse environmental effects and point out the impacts that the proposed
project may have on title, rights, and interests (Fidler 2008). Dispute resolution provisions
were in place to set out the steps for any disagreements between the signatories: first via
good faith negotiations, then mediation, and if the foregoing is exhausted, binding arbi-
tration. The main components and objectives of the NA can be summarized as such:
A framework for communication and partnership;
Legally binding enforceable contract;
Benefits to Tahltan from Galore, and support from Tahltan to Galore;
Covers all stages of the project: permitting, construction, operation, and closure.
Additional examples of NA provisions include: environmental monitoring, heritage
resources, TK, permitting timeline goals, and an ongoing review of closure plan. In
addition to the NA’s procedural and substantive EIA schedule, the agreement includes
funding for employment training, scholarships, and contracting opportunities. The NA
factored in potential education and employment limitations to provide realistic initiatives
and opportunities that reflect the Tahltan Nation’s goals. The Galore Creek NA created a
human resources inventory that would be helpful in the development of strategies, time-
lines and obligations to accurately represent the education and technical levels of Tahltan
members. Through consultation, information distribution, and working groups, the EIA
and NA created an iterative process for Tahltan participation and partnership planning.
The breadth of the NA reflected many issues protected under EIA legislation, but also
went further to provide additional investment security for the proponent and benefits to the
Tahltan Nation. The Tahltan were able to utilize monetary resources provided by the
proponent through the NA to become more engaged and positively influence the design
and planning of the mine. For instance, the proponent proposed two possible access routes
to the proposed open pit site for government agency and Tahltan Nation review. The
Tahltan analyzed engineering plans and company rationale, held discussions in the com-
munity, and through participatory engagement that included the incorporation of TK, were
able to identify a third and final route (approved in the EIA certificate) which posed less
risk to the Nation. This is one example of the Tahltan participating in the process to make
the project more sustainable and favorable to the Nation.
A ratification process of acceptance or rejection by simple majority was performed by an independent
240 C. Fidler
Another example ensures that at the closure of the mine the Tahltan carry out an
independent evaluation to ensure obligations of the closure plan have been reached before
the proponent receives its reclamation security. In areas of restoration and mine closure,
the Tahltan have less trust in the government because of negative experiences in the past,
and chose to place an extra layer of protection on these issues through legally binding
provision in the NA (Fidler 2008). This is similar to the authority of the government
regarding closure regulations, whereby the proponent cannot walk away from the mine
until the province authorizes it. In this case the Tahltan get their authority from the NA and
the government receives theirs through legislation (Fidler 2008). Taken together, the EIA
and NA ensure that closure conditions meet Tahltan standards.
5.5 Sustainability in situ, Galore Creek project review
Mining projects proposals produce a multitude of events and responses in the design and
operation stages for local communities. While Aboriginal groups still, arguably, experience
intractable unilateral land and resource decision-making on behalf of the Crown
(Larcombe 2000), NAs are mainstream mechanisms in Canada for Aboriginal peoples to
regain control and integrate local decision-making into project design and planning.
The Tahltan and proponent have different priorities and decision-making structures.
Like most corporations, NovaGold’s priority is on profit and delivering a fair return to
shareholders. Tahltan priorities also support economic gain, but only as long as those assets
do not cause irreparable environmental harm or socio-cultural loss. The Tahltan utilized
the NA to influence the mine design by identifying an alternative access road and secured
additional remedial requisites for the proponent to adhere to during decommissioning.
These are some examples of how the NA was utilized to strengthen the conventional
regulatory process and enhance the prospect of a more sustainable mining development.
The Galore Creek case study demonstrates that the NA proved valuable next to the EIA,
as it furthered how the Tahltan wanted sustainable mining activities to occur on their
traditional lands and in accordance with the Tahltan way-of-life. The NA proved to be an
advantageous model to forward Tahltan aspirations (Fidler 2008) outside, but not in iso-
lation, to the legislated framework.
6 Concluding thoughts
Within this transformative extractive climate, a transactional approach has been taken up
and is most evident in NAs, signed between mining proponents and Aboriginal groups. The
existence of NAs maximize industrial certainty and guarantee benefits to the local com-
munity by enabling cooperation through reciprocity and the binding of promises that would
be difficult to achieve exclusively through the Crown.
This paper examined the tripartite relationship between the Crown, industry and
Aboriginal group, to understand the web of interactions that occur within the context of
mineral development and environmental management. The focal point of this paper is that
a more sustainable mineral development can be achieved by greater Aboriginal engage-
ment in the design, operation and closure of a mine. It is clear from the foregoing that early
engagement is a practical approach of moving toward reconciling contrasting intercultural
perspectives on mineral development and converging on terms to be cited in a NA. The
Tahltan used the NA to supplement the roles afforded to them by the regulatory authorities
and incorporate outstanding concerns above and beyond those set out in the EIA. In effect,
Aboriginal engagement and negotiated agreements 241
the case study partnership between the Tahltan Nation and the proponent, NovaGold,
supports the ICMM statement that ‘successful mining and metals operations require the
support of the communities in which they operate now, and in the future, to ensure
continued access to land and resources’ (Render 2005).
As a cautionary note, however, contracts with corporate interests have wider and
important implications for relationships between Aboriginal groups, the state, and civil
society; and these implications need to be carefully considered in negotiation strategies
(Gibson 2008; O’Faircheallaigh 2006). Indeed NAs can complement the EIA process, but
it is important to acknowledge that the original spirit and intent of these voluntary bi-lateral
agreements are not to lessen the Crown’s duty to consult with Aboriginal people. More-
over, NAs are not intended to act as a substitute or stand-in for EIA matters. While IBAs
make good business sense, they cannot be taken in isolation to the broader judicial system.
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Aboriginal engagement and negotiated agreements 243
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Regulation and legislation
British Columbia Environmental Assessment Act, S.B.C. 2002, c. 43.
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Constitution Act 1982. s. 35.
244 C. Fidler
... To frame environment-based development, we first constituted and compiled a list of key references. This initial literature review gathered references with different scales of analysis (global, Sahel, Senegal, and Ferlo), with particular attention paid to development studies in southern countries [8,9,[11][12][13][14][35][36][37] and sustainable development and/or environmental based development [10,[38][39][40][41][42][43][44][45]. Given the study area, this review included literature on conservation issues [4,26,[46][47][48], desertification in the Sahel [5,[49][50][51][52][53][54][55][56], actions of reforestation and environmental restoration [27,[31][32][33][34][57][58][59][60][61][62][63][64], issues around livestock and development dynamics [19,[65][66][67], water provisioning and boreholes [16,17,68], and grazing land management and Senegalese pastoral units [69][70][71]. ...
... Taking into account local populations and their knowledge seems necessary to answer both socioeconomic and environmental issues [41,64], even if participatory development and community-based conservation can be disconnected [117]. The scientific literature provides positive examples on that matter; for instance, the role of Aboriginal participation in mine development in Canada [43], or the meta-analysis of 116 published case studies on common resource management regimes in Africa, America, and Asia conducted by Oldekop et al. [47]. In the case of the Ferlo, one cannot help but wonder to what extent the integration of local knowledge of Fulani pastoralists could better guide development actions, an issue that seems to have received little consideration to date. ...
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A major challenge faced by human societies is to promote development that truly makes difference for people without jeopardizing their environment. This is particularly urgent in developing countries where, despite decades of development programs, local populations often live under poverty thresholds. With this study, we participate in the ongoing debate about the necessary global revision of development theory and practice in the rural Sahel. We retrace the development trajectories in the Ferlo, the northern silvopastoral zone of Senegal. We highlight how development has evolved from the 1940s to the present, from centralized development action programs focused on hydraulic infrastructure to current polycentric development with growing environmental concerns. We highlight multi-scale events that have influenced the successive development paradigms in the area. Focusing on the past thirty years, we analyzed twenty-five environment and natural resource management-oriented projects, describing the evolution of their objectives and actions over time and identifying recurring flaws: redundancy, lack of synergy, and questionable relevance to local needs We put forth that a more resilient thinking-based development paradigm is necessary to guide the growing number of environment-oriented development actions, including the African Great Green Wall, for which massive investments are ongoing throughout Ferlo and across the Sahel.
... ▪ research ethics and methodologies (Menzies, 2001;Maldonado et al., 2016;Holcombe & Gould, 2010); ▪ environmental governance and co-management (Lui et al, 2016;von der Porten, de Loe, & Plummer 2015;Lane & Corbett, 2005;Howitt, 2001;; ▪ ecological and biocultural research (Adams et al., 2014;Armitage et al., 2011); ▪ forest governance (Sherry, Halseth, & Fondahl, 2005;Booth and Skelton, 2011); ▪ water governance (Jackson et al., 2012;Escott, Beavis & Reeves, 2015;von der Porten & de Loe, 2013); ▪ marine activities and coastal management (PAME, 2017); ▪ environmental impact assessment processes (Udofia, Noble, & Poelzer, 2013;Wanvik & Vaine, 2017); ▪ resource development and extractive industries (Kuokkanen, 2018;Fidler, 2010;Whiteman & Mamen, 2002;Ruwhiu & Carter, 2016). ...
... 1270). The authors also returned the results of their research to the participants to maintain relationshipbuilding. Another case study of the Galore Creek project on the traditional Tahltan territory of Northwestern British Columbia, Canada, analyzes evolving engagement standards in Canadian environmental assessment projects through negotiated agreements (Fidler, 2010). Similar to the case of Torres Strait, one key aspect for the negotiated agreement's success highlighted by the author is a dispute resolution that clearly lays out steps for resolving disagreements between signatories: first, to try and address problems via good-faith open negotiations; second, to try mediation; and, third, if all else fails, to go to binding arbitration (p. ...
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This study explores the principles and practices of meaningful engagement of Indigenous Peoples in geoconservation practices by examining the engagement literature and geoheritage conservation case studies worldwide. More specifically, this study’s purpose is to inform best practices for Indigenous engagement in the governance of UNESCO Global Geoparks with lessons for other multi-international designated sites such as UNESCO Biosphere Reserves. Geoparks are unified areas of geological significance that promote the importance of protecting geodiversity around the world by actively engaging local communities. To achieve the study’s purpose, I conducted (1) a literature review on collaborative approaches for Indigenous engagement in conservation practice and natural resource management, (2) semi-structured interviews with key actors who work directly with Indigenous Peoples and communities, including individuals from Canadian Commission for UNESCO; UNESCO Global Geoparks in Canada, Chile, Mexico and Nicaragua; International Indian Treaty Council; Government of Alberta Environmental Monitoring and Science, Indigenous Knowledge Division; and the Native Studies department at Dalhousie University. I was able to identify overarching themes in the literature that constitute principles of meaningful Indigenous engagement as well as practices that can help implement those principles. Similarly, interviewees shed light on the importance of Indigenous engagement in geoparks, associated barriers, and challenges, as well as ways to address them. I concluded that while there is no single one-fits-all model of Indigenous engagement due to the vast diversity of Indigenous communities around the world, good practices can guide engagement processes aimed at good-faith and long-term relationship-building so that it can be more ‘meaningful’.
... The exhaustion of easily accessible deposits and the advancement of new technology have led to the unprecedented and unregulated geographical expansion and intensification of extractive industries, often to previously isolated areas where Indigenous peoples predominate. As a result of their geographic locations and special relationship with the land, Indigenous communities are at the forefront of contemporary struggles for the environment (Fidler 2010;Löwy 2014). International human rights norms and environmental concerns have strengthened the legitimacy of Indigenous peoples to contest extractive industry operations. ...
... Negotiated agreements over benefits and impacts are a key mechanism to ensure greater stability and legal certainty for extractive firms, governments, and Aboriginal communities. Political and legal certainty is not only a goal for governments and industry, but also for Aboriginal groups so that they can plan for the future (Fidler 2010;Frilet and Haddow 2013;Malcolm and Newman 2015). The negotiation of contractual agreements between Aboriginal communities and mining companies, for instance, is now standard practice in Canada. ...
... These agreements, commonly known as Impact Benefit Agreements (IBAs), have led to a degree of decision-making and fiscal benefits for Indigenous communities most directly impacted by resource extraction activities in their territory. Indigenous people's participation in agreement-making has been considered by some as a way for Indigenous nations to exert their self-determination and gain economic benefits from resource development (Fidler, 2010;Slowey, 2008). Others caution participation in these agreements due to their inequitable distribution in power prior to, during, and post agreement negotiation (most notably Caine & Krogman, 2010). ...
... Indigenous communities may participate in IBAs for a variety of reasons. It is suggested that IBAs are an opportunity for Indigenous communities to assert their status as self-determining Nations, as IBAs are a mechanism that recognizes the authority of the First Nation to their territory, can improve agency in terms of land use and management, and can improve capacity as a community through the benefits that flow from these agreements (O'Faircheallaigh, 2020;Siebenmorgen & Bradshaw, 2011;Fidler, 2010). While Slowey (2008) argues that these agreements may offer a pathway for transforming Indigenous socio-economic well-being and self-sufficiency, there is concern that these neoliberal, market-driven forms of self-governance create new configurations of dependency (Kuokkanen, 2011), specifically on volatile markets of staples-industries (Markey et al., 2019). ...
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With an increasingly political environment developing in western, industrialized resource sectors, the purpose of this paper is to explore Indigenous governments’ ability to assert sovereignty over their territory as it pertains to resource development. Utilizing a relational self-determination framework, we present a case study of the Stk’emlupsemc te Secwépemc Nation and their role in governance over mineral development in their unceded traditional territory located in the interior of British Columbia, Canada. This article adds to the growing case examples that suggest that First Nations governments in Canada are exerting their self-determination strategically, transitioning the role of negotiated agreements from an Impact-Benefit transaction to gain greater participation in resource extraction decision-making. Utilizing tools such as cultural heritage studies, legal action, and developing community-based processes of consent, First Nations governments are gaining more negotiating leverage and influence over decision-making processes for resource development projects. These insights are particularly relevant for Indigenous communities that are considering their options regarding resource development as a path to autonomy and self-governance over their territory, resources, and economies.
... Prno et al. (2010) concluded that the Indigenous communities that were signatories to the 14 Impact Benefi t Agreements they analysed saw local benefi ts in the areas of employment, income, and secondary schools completion (cited in Haley & Fisher, 2014). Fidler (2010) argues that Environmental Impact Assessments, which are federally regulated, can complement negotiated agreements like IBAs for a more sustainable form of resource development that ensures Indigenous communities can make the most of extractive development. ...
... The exhaustion of easily accessible deposits and the advancement of new technologies have led to the unprecedented expansion and intensification of extractive industries, often in previously isolated areas where Indigenous peoples predominate. As a result of their geographic locations and special relationships with the land, Indigenous communities are at the forefront of contemporary struggles for the environment (Fidler 2010;Löwy 2014). International human rights norms have strengthened the legitimacy of Indigenous peoples to contest extractive industry operations. ...
Full-text available
Mine developments in Indigenous territories risk disrupting Indigenous cultures and their economies, including spiraling already high levels of conflict. This is the situation in Canada, Sweden, and Norway, as elsewhere, and is fostered by current state legal framework that reflect historical trajectories, although circumstances are gradually changing. Promising institutional changes have taken place in British Columbia (BC), Canada, with respect to new legislative reforms. Notably, new legislation from 2019 intends to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in the province, by promoting consent-based and collaborative decision-making mechanisms. New environmental assessment legislation is another example; this legislation includes early engagement, collaborative decision-making, and Indigenous-led assessments. The article’s aim is, first, to analyze how Indigenous communities can influence and engage in the mining permitting system of BC, and, secondly, to highlight the positive features of the BC system using a comparative lens to identify opportunities for Sweden and Norway regarding mining permitting and Indigenous rights. Applying a legal-scientific and comparative analysis, the article analyzes traditional legal sources. The article concludes that the strong points that the BC regime could offer the two Nordic countries are: the concept of reconciliation, incorporation of UNDRIP, the spectrum of consultation and engagement approaches, and the structure of environmental assessments. All three jurisdictions, however, struggle with balancing mine developments and securing Indigenous authority and influence over land uses in their traditional territories.
Impact benefit agreements (IBAs) are an increasingly common tool in resource development. However, the effectiveness of IBAs in achieving community and development objectives can vary widely depending on the negotiating process, the components of the IBA, and implementation and management of the IBA. This paper provides a comprehensive best practices framework for developing and managing IBAs from the perspective of impacted communities, based on a synthesis of recommendations from academic, industry, governmental, and non-governmental organization literature. The best practices are presented in a three-tier model comprised of 10 general best practice criteria, 44 sub-criteria and 89 indicators. The criteria are presented in the form of a checklist that can be used to guide the negotiation, implementation and management of IBAs and to conduct ex post IBA evaluations. While the best practices have been developed from the perspective of impacted communities to achieve better IBA outcomes, these best practices will also be helpful to academics and others who want to evaluate IBAs, and to resource developers who are interested in negotiating effective IBAs with their community partners.
Indigenous groups offer alternative knowledge and perspectives based on their own locally developed practices of resource use. We surveyed the international literature to focus on the role of Traditional Ecological Knowledge in monitoring, responding to, and managing ecosystem processes and functions, with special attention to ecological resilience. Case studies revealed that there exists a diversity of local or traditional practices for ecosystem management. These include multiple species management, resource rotation, succession management, landscape patchiness management, and other ways of responding to and managing pulses and ecological surprises. Social mechanisms behind these traditional practices include a number of adaptations for the generation, accumulation, and transmission of knowledge; the use of local institutions to provide leaders/stewards and rules for social regulation; mechanisms for cultural internalization of traditional practices; and the development of appropriate world views and cultural values. Some traditional knowledge and management systems were characterized by the use of local ecological knowledge to interpret and respond to feedbacks from the environment to guide the direction of resource management. These traditional systems had certain similarities to adaptive management with its emphasis on feedback learning, and its treatment of uncertainty and unpredictability intrinsic to all ecosystems.
Sustainability assessment is now emerging as a more transparent, comprehensive, integrated and far-sighted approach to decision making. Its basic demand is that all significant undertakings must make a positive contribution to sustainability. To apply this test, decision makers need criteria based on the core requirements of sustainability and the particularities of the context. As well, they need appropriately designed public processes; guidance on the weighing of alternatives, trade-offs and compromises; a supportive policy framework; suitable tools and inspiring examples. Drawing from transdisciplinary theory and practical case experience, the book addresses these matters and many of the surrounding controversies. While sustainability assessment must always be adjusted to particular circumstances, the generic approach set out in this book is applicable virtually anywhere.
This paper discusses legal developments relating to the relationship between Canadian governments and Canada's Aboriginal peoples regarding certainty of access to natural resources. Canadian Aboriginal law has undergone a complete evolution in the 23 years since Canada's Constitution was amended to recognise the then vague concept of ‘existing Aboriginal and treaty rights’. What is notable is the influence of the common law and Canadian administrative law in developing the new doctrines of the Crown's duty to consult and, where appropriate, accommodate Aboriginal peoples. The honour of the Crown and reconciliation have moved Canadian Aboriginal law from a comfortless uncertainty to a legal certainty in which Canadian governments continue to manage natural resources, but do so subject to fair treatment of Aboriginal peoples.