Best Practices - Consultation and Negotiation with Aboriginal Groups

1. Best Practices - Consultation and Negotiation with Aboriginal Groups Sam Adkins

2. Consultation and Negotiation • Consultation and Negotiation • two streams • legal obligation v. business imperative • Duty to consult is a Crown obligation which must be satisfied • But delegation of procedural aspects to proponent • Role of agreements • in most cases, not legally required • not strictly speaking “accommodation” • FPIC, CSR and social licence considerations • mitigate aboriginal risk

3. Aboriginal risk • Aboriginal risk is the primary focal point on many projects seeking Crown approval • Aboriginal-related risk is not simply a legal issue • The law v. managing risk - not always the same • Understanding the sources of risk: • Legal Risk • Practical / Implementation Risks • Government / Regulatory / Political Risk • What is managing / mitigating the risk worth? • Budget • Reputation • Schedule • Investor confidence • Precedent concerns • Business case

4. Consultation • No formula – will depend on circumstances • Guiding principle - take it seriously • Information gathering – preliminary due diligence prior to initiating consultation • Identification of the general location of the project and preliminary identification of likely potential effects • Identification of likely legislative and regulatory requirements to consult • Identification of the aboriginal communities using or claiming the project area • Rights and claims vary depending on location: identification of the existence of a treaty, comprehensive land claims agreement, land claims, reserve lands, specific claims or other aboriginal claims with respect to the territory • Experience of other projects

5. Who to Consult? • Crown • Consult with Crown decision-makers early in project planning • Confirm which Aboriginal groups should be consulted with respect to the project • Avoid getting caught between Crown and First Nation • Practical reality of limited Crown resources and time • Ensure Crown is involved in the process • Aboriginal groups • Collective not individual rights • “the entitlement of the trapper Johnny Sam was a derivative benefit based on the collective interest of the First Nation of which he was a member. I agree with the Court of Appeal that he was not, as an individual, a necessary party to the consultation.” (Little Salmon) • May be challenging to identify aboriginal groups • Legally mandated groups should always be consulted, e.g. First Nation Chief and Councils • Larger political organizations can play a role – but they cannot be the sole focus of consultation • Document authority of those that you are dealing with • Best practice: case by case analysis

6. Consultation – Specific issues • Tension between relationship building versus regulatory certainty • focusing solely on relationships without covering the legal requirements of consultation can leave a project vulnerable (both in terms of the decision-maker but also in terms of negotiating with aboriginal groups) • but focusing solely on legal solutions may not present a full understanding of risks • Is this consultation? • Consultation is a Crown obligation - entitled to delegate the “procedural aspects” to third parties • Proponent consultation often forms part of overall consultation process established by Crown - can be complex and controversial issue • Most activities involving an exchange of information, discussion and consideration of concerns is part of consultation • Consultation should be “on the record”

7. Consultation – Specific issues • Process/Funding Agreements • Many forms, including protocols, memorandums of understanding, capacity funding agreements, or other framework agreements • often valuable tools - critical to understand what is being agreed to. • We are seeing more agreements at early stages of projects (e.g. exploration agreements) • Funding • to date, no case law requiring private third parties to fund aboriginal consultation efforts but will be expected and in many instances can be very beneficial • Recent government consultation policies related to funding • Documentation • Processes for documentation are essential – can be very resource intensive on large projects • Document efforts to engage with Aboriginal groups even where lack of engagement (strategic v. actual lack of interest) • If litigation ensues, record will form part of evidence that Crown has met its duty to consult.

8. Benefits Agreements • Distinction between process/funding agreements and substantive benefits agreement • Agreements generally arise out of business imperative rather than legal obligation • De facto obligation? • Expectations of aboriginal group • Impact on Crown decision-making • Ontario consultation policy and mining regulations • Newfoundland consultation policy • British Columbia Environmental Assessment Office: “…the EAO will consider any information it receives regarding such agreements when assessing the impacts of a proposed project…”

9. Negotiating Benefits Agreements • Develop your strategy • Critical to know business case and strategy before beginning negotiations (but be prepared to revisit) • Have a game plan • Understand your objective(s) and ensure your overall strategy supports achieving objective(s) • e.g. - Objectives may not be clear internally – Why is an agreement important or necessary? Are alternative approaches available? Questions such as these and their answers may affect how a negotiation is approached and managed • Mandate • Develop a clear mandate for the negotiation team that supports the strategy

10. Negotiating Benefits Agreements • Ensure negotiation team is appropriately resourced – not peripheral matter • Once your team is in place – keep it there • Recognize tension between strategy and relationships • Build and maintain relationships • But focus on your strategy when building the relationship • Speak with one voice • have internal pre-meetings prior to negotiation meetings • use break-out meetings to clarify your team’s position before speaking on an issue or to address matters arising at the table • support (and defer to) lead negotiator - do not fall for divide and conquer tactics • Where possible, control the drafting • “he/she who drafts wins”

11. Negotiating Benefits Agreements • Focus on the outcome and your objectives • Not about being “right” • Keep your eye on the “prize” – focus on the success of the project • Difficult issues - where possible: • be frank about what you need or why something will not work • address issues head-on • early on in negotiations, nice to have issues agreed to – may mean leaving some difficult issues until end of negotiations – showing progress at the table can be critical

12. Negotiating Benefits Agreements • Key Issue – Confidentiality • Majority of benefits agreements and negotiations are strictly confidential in order to protect the economic and political interests of the parties, but increasingly there is a debate about the need for greater transparency • Cuts both ways – balance desire to share/transparency versus precedent concerns • Practically speaking, confidentiality may be limited with large beneficiary population • Who does confidentiality really benefit? • Will usually be critical to be able to share at least part of the agreement with Crown decision-makers • Consider continuous disclosure obligations • Must ensure that consultation not confidential - clear distinction between business discussions and consultation