Agreements involving indigenous groups are becoming more common. Canada is an important pioneer in this development. In this country, decisions that were previously taken between the government and the mining industry, now often involve indigenous people as a third party. Going even further are the agreements that are negotiated directly between mining corporations and indigenous communities, without any government involvement. In other words, indigenous communities in the Canadian North ‘are gaining greater input into decision-making’ (Dreyer and Myers, 2004:5).  

These agreements, the so-called Impact and Benefit Agreements (IBAs), are private confidential contracts used ‘to document […] the benefits that a local community can expect from the development of a local resource in exchange for its support and cooperation’ (IBA Network Research). Benefits vary, but often include agreements on royalties, profit sharing, employment, education and training, environmental protection, economic development, and social, cultural, and community services for the communities affected by the development.

Benefits…

IBAs are, in many ways, a positive change of practice. Weinstein (1992 [as quoted in Dreyer and Myers, 2004: 29-30]) states that past development, initiated without cooperation from the indigenous groups they would affect, reflected at best, ignorance, and at worst, racism. IBAs, on the other hand, are ‘novel’ and ‘noteworthy’ for their ability to present ‘tangible benefits’ to the local community (IBA Research Network, Prno, 2007: 114).

In Canada, IBAs were used to facilitate the development of the Northwest Territories’ three diamond mines (Ekati, Diavik and Snap Lake), as well as Inco’s Voisey’s Bay project in Labrador. Here, the IBAs have successfully contributed to the mutual understanding of indigenous people and companies. According to Kennett (1999 [as quoted in Dreyer and Myers, 2004: 7]) indigenous peoples and governments have used IBAs ‘to address the concerns of indigenous peoples and other local residents regarding the adverse effects that large scale […] development may have on their communities, culture, way of life, natural environment and land-based economic activities’ that ‘secure local short-term and long-term benefits from those developments.’

For one, these benefits contain employment and service opportunities as described above. For example in the case of the IBAs that was formalised between Attawapiskat and De Beers, the Chief Carpenter of Attawapiskat First Nations in Northern Ontario maintains that the IBAs guarantee jobs for local residents and give the community a voice in environmental monitoring (Fidler and Hitch, 2007: 60).

Also, it is generally considered that in Canada, IBAs have represented a shift from government dependency. Whereas previously, land claim settlements were concluded solely between the government and the mining companies, now, indigenous groups have reached a high level of self-governance in this area. Often, agreements are formulated directly between the local community and the mining company, without influence or interference of the government. In this way, Fidler (2008: 27) argues, local communities have achieved self-sufficiency. Now, indigenous groups are able to promote their interest through IBAs with companies, even if they are excluded from doing so with the state.

At least as important is the security of safe and sustainable use of the land. It is widely accepted that indigenous people ‘maintain a close relationship with the land and resources’ (LaDuke, 2005; McGregor, 2004). Land has also been described as ‘absolutely fundamental to [indigenous] identity’ by the Royal Commission on Aboriginal Peoples (Government of Canada, 1996 [as quoted in Fidler, 2008: 23). Land is reflected in the language, culture and spiritual values of all indigenous people. On the one hand, this means that the indigenous concern about environmental integrity remains strong as they tend to be influenced more directly from the impacts of pollution, contamination, social breakdown and economic hardship (Larcombe, 2000 [as quoted in Fidler, 2008: 23). On the other hand, the great value that the indigenous people attach to the land and the experience they have in the use of the resources gives them knowledge about the land that is essential for companies to ensure safe use of land.

The last point leads to the conclusion that, in addition to the benefits for the indigenous people, IBAs are also often beneficial to the industry in Canada ‘as they provide a base for successful working relationships with indigenous communities and the government’ (Kennett, 1999 [as quoted in Dreyer and Myers, 2004: 5]). Diavik Corporation President Rod Davey recognised the importance of this, since prosperity is often built through the development of the lands and resources that are occupied by indigenous people. The corporation said that “Diavik recognises that […] it is important that we work closely together in developing the mine” (Slowey 2001: 274).

… and Doubts

Despite IBAs having the potential to offer guidance for distributing the use of resources within a territory by creating mutually beneficial relationships that lower the risk posed to resource development, they are not without their faults or critics. For example, in the case of the Ross River Dena, the indigenous people had low employment opportunities while the community suffered severe repercussions in the form of social, cultural, environmental and economic impacts.

Indeed, IBAs are not always beneficial to the indigenous communities. First, it has become common for IBAs to be written in vague language. Ambiguous terms such as “to take all reasonable steps” and “to make reasonable efforts” hinder the implementation and enforcement of the IBA. These terms form a problem for third parties such as the government, court or arbitrator, who have to judge whether the agreement has been violated.

Second, some agreements even reduce opportunities for indigenous participation in environmental management. In the same country where IBAs have been so successful, Canada, the contribution is in some cases non-existent or limited to enabling indigenous people to take legal action to remedy breaches of the agreement by giving them an opportunity to be consulted by developers. In these cases, opportunities for participation in the project’s environmental management become minimal once a project has been approved.

In other cases, there is skepticism about how benefits are equitably distributed throughout the communities with women continuing to be disadvantaged economically and socially (Fidler and Hitch, 2007: 62-63). This is visible in the outcome of the Dona Lake IBA. Here, large parts of the indigenous community do not have the capacity to fill the employment targets that were set in the IBA. As a result, the benefits that are gained from the IBA are limited.

Partly, these negative outcomes may be the result of boundary issues. One community can negotiate a deal that can affect a different group that has not taken part in the drafting of the agreement. Or there can be disagreement within a community that has to negotiate as one entity, which decreases the negotiation power of that community.

The negative outcomes may also be the effect of the unequal positions of the industry and the local community. In many instances, businesses are in a better position to negotiate in terms of finances, level of organisation, and legal institutional knowledge. O’ O’Faircheallaigh and Corbett (2005: 632) explain this by saying that ‘many of the administrative and legal avenues that are in principle open to them [indigenous communities] may be culturally alien and are costly’. This leads Fidler (2008: 8) to say that ‘at ground level there is potential for power differential that affects equitable decision-making and the sharing of benefits’. As a result, Fidler and Hitch (2007: 49) argue, ‘IBAs can perpetuate injustices if benefits are not equally distributed to the community or if monitoring and follow-up on behalf of both parties are not continuous.’ In particular, they raise concerns in relation to the government’s absence in IBAs, since this means there is no protection or scrutiny from the state, which leave indigenous groups vulnerable.

The road to success

This last point leads to the question whether IBAs have the ability to be effective at all. Indeed, the answer to this question is yes, they can be effective. As we have seen, in the mining industry in Canada, companies like De Beers and Diavik Corporation have successfully given indigenous groups a voice in negotiations and in the use of land by means of formulating IBAs (Sosa and Keenan, 2001). However, with the great risks of failure it is important to identify the criteria for success of an IBA.

First, O’Faircheallaigh (1995) argues that the effectiveness of an IBA is dependent on the ‘bargaining power’ of the indigenous group. Their strong position has made for example the  Cape York Land Council successful. The bargaining power is dependent on factors such as the level of unity of the group and ownership of the land. It is also dependent on the groups’ ability to ‘maximize’ the IBA process in terms of determining what needs to be achieved, accessing information and developing effective relations with industry leaders.

Second, the effectiveness of IBAs is dependent on the intent of the companies involved. This can, according to Dyers and Myer (2004: 60) be demonstrated in a variety of ways such as

‘…respectful and effective communication, considering and learning about indigenous communities’ culture and customs, ensuring communities’ input into decision-making at the mine site, creating and offering maximum employment, training and business opportunities for indigenous community members, and making efforts at overcoming challenging situations throughout the IBA process.’

Third, it is necessary to have close examination of the socio-economic impact of the developments, a mutual understanding of the agreement before it is signed, and good communication to allow the constant involvement of the affected community. In this process, indigenous groups are often represented by band councils, chiefs or indigenous development corporations (Sosa and Keenan, 2001: 3).

But most importantly, for an IBA to be successful, ‘the commitment the different parties bring to the negotiation and implementation of the IBA’ (Dreyer and Myers, 2004: 65) is essential. 
The lack of commitment can in the case of the Ross River Dena be seen as the primary reason for the positive impacts being minimal. When the benefits for corporations stagnated, the opportunities for the indigenous people also diminished rapidly. Since there is often an unequal division of legislative support, with indigenous groups having less access to legal aid than companies, ‘indigenous groups are highly dependent upon the goodwill industry brings to a project’ (Dreyer and Myers, 2004: 65).

Standards and practices

It is important to note that these criteria for success are frequently fulfilled in negotiating IBAs. Companies are often committed to make the IBAs, which have become a common part of negotiations, a success. And it is widely understood that the positions are unequal and that therefore regular consultation of the community is needed. Great attention is paid to the anticipation of the threats to the group and they are frequently presented during the negotiations of the IBA and during monitoring sessions. In Canada, for example, some IBAs require that the company prepares an inventory of all the products and materials that will be used in the mine. These inventories enable indigenous groups to prohibit the use of certain products (Sosa and Keenan, 2001: 15-16).

Equally promising for the prevention of unsuccessful IBAs is the fact that an increasing number of standards on consultation of the indigenous people and on the monitoring of IBAs are laid down in international declarations such as the International Labor Organization’s Indigenous and Tribal Peoples Convention and the United Nations and Inter-American Declaration on the Rights of Indigenous Peoples. These international agreements ’provide impetus towards evolving consultation standards’ (Fidler, 2008: 13). Also, the United Nations Agenda 21 (1992), Division for Sustainable Development:

‘…promotes environmental and development partnerships using policy to address Aboriginal [indigenous] rights, environmental degradation, and poverty reduction. These measures, which aim to genuinely increase Aboriginal [indigenous] participation in environmental programs, have been argued by some to be a way to secure the basis of Aboriginal [indigenous] livelihood’ (Fidler, 2008: 13).

So, the need for indigenous participation in the creation of agreements on resource development is widely recognized in international standards and in practice. Even though this does not mean that this participation is always successfully incorporated in legislation, which is for example visible in the failure of many states to ratify ILO Convention 169, the recognition of the need reduces the risk for local communities to be thoroughly affected by their initial often unequal position.

In the end, one can say that the construction of IBAs as common practice is a great step forward from the situation in which decisions were made about land of indigenous groups without properly consulting them. They allow local communities to have their voices heard in decisions that will affect the land that is often so important to them and they create mutual understanding between involved companies and communities. Despite doubts that have been raised about the effectiveness of the agreements, IBAs are becoming increasingly effective. With a growing number of standards of conduct being laid down in agreements and an increasing understanding of the situation in practice, the voice of indigenous groups is likely to only become louder and more effective.

Bibliography
Dreyer, D. and Myers, H. (2004). Impact and Benefits Agreements: Do the Ross River Dana benefit from Mineral Projects? Submitted to North Land Use Institute and the University of Northern British Columbia.

Fidler, C. and Hitch, M. (2007).  Impact and benefit agreements: A contentious issue for environmental and aboriginal justice. Environments Journal, 35(2), 45-69.

Fidler, C. (2008). Aboriginal Participation in Mineral Development: Environmental Assessment and Impact and Benefit Agreements. MASc Thesis, The University of British Columbia.

IBA Research Network. (2009). Background. Retrieved 28 May 2009 from http://www.impactandbenefit.com/Background.html 

Kennett, S. A. (1999). A guide to impact and benefits agreements. Calgary: Canadian Institute of Resources Law.

LaDuke, W. (2005). Recovering the Sacred: The Power of Naming and Claiming. Cambridge, MA: South End Press.

Larcombe, P. (2000). Determining Significance of Environmental Effects: An Aboriginal Perspective. Quebec: Canadian Environmental Assessment Agency.

McGregor, D. (2004). Coming Full Circle; Indigenous Knowledge Environment, and Our Future. American Indian Quarterly, 28 (3), 385-410.

O’Faircheallaigh, C. (1995) Negotiations between mining companies and Aboriginal communities: Processes and structure. Canberra: ANU Centre for Aboriginal and Economic Policy Research.

O'Faircheallaigh, C. and Corbett, T. (2005). Indigenous Participation in Environmental Management of Mining Projects: The Role of Negotiated Agreements. Environmental Politics, 14(5).

Prno, J. (2007). Assessing the effectiveness of Impact and Benefit Agreements from the perspective of their Aboriginal signatories. MA Thesis, Department of Geography, University of Guelph.

Sosa, I. and  Keenan, K. (2001). Impact Benefit Agreements between Aboriginal Communities and Mining Companies: Their Use in Canada. Retrieved 9 June 2009 from http://www.cela.ca/files/uploads/IBAeng.pdf

 Weinstein, M. (1992). Just like people get lost: A retrospective assessment of the Faro mining development on the land use of the Ross River Indian people. Ross River: Ross River Dena Council.