By Krista Robertson, Woodward & Company, November 7, 2007

Introduction

The government’s duty to consult with First Nations about decisions that may impact Aboriginal rights is well established in law and in practice.  The threshold of the duty to consult is very low: in any circumstance where there may be an Aboriginal right that might be infringed by a proposed course of action, the legal duty to consult is triggered.  The duty of consultation is process oriented.  In essence, it is a duty on the part of the government, and on First Nations whose rights may be affected, to share information.

The key companion of the government’s legal duty to consult is the duty to accommodate.  The government’s duty to accommodate is what gives meaning and purpose to the duty to consult; without it, consultation is mere talk. The process of consultation determines what, if any, accommodations will be required.  As stated by the Supreme Court of Canada in Haida Nation v. British Columbia (“Haida Nation”):  “when the consultation process suggests an amendment of Crown policy, we arrive at the stage of accommodation”.[1]  This section of the toolkit is focused on the key legal principles that guide the duty to accommodate.

1) The Duty to Accommodate Varies with the Circumstances

It is impossible to define categorically the duty to accommodate, because a fundamental principle of the duty is that it varies with the circumstances.  The scope and nature of the duty to accommodate is situation specific, and depends on what information is brought forward in the consultation process.  The strength of the evidence the government is provided with about the Aboriginal right at issue, and the extent to which it would be harmed or interfered with by the proposed government action, determines the strength of the duty to accommodate.  Therefore, it is very important that First Nations fully participate in the consultation process in demonstrating their rights and identifying the ways in which the right could be impacted, in order to ensure a high bar for accommodation that the government much reach. 

2) First Nations Interests Must be Put Forward in Terms of Aboriginal Rights

A First Nation may have a range of concerns or interests in relation to a proposed decision or development.  For example, a First Nation may object to a proposed government decision to issue a logging licence to a third party because the First Nation itself has an interest in logging that area on a commercial basis, or because the area may contain culturally modified trees or archaeological sites that the First Nations wishes to protect.  While these are valid and important interests, with very limited exceptions they are not Aboriginal rights.  The duty to accommodate is only triggered when an authorization is likely to interfere with constitutionally protected Aboriginal rights, (which include Aboriginal title).  Therefore, First Nations should be sure to communicate and record the potential impact of proposed decisions in terms of their Aboriginal rights.  In the case of title, the courts have defined this as land that the First Nation exclusively occupied at 1846.   In the case of rights, the courts had defined these as practices integral to the distinctive culture of the First Nation at the time of contact with Europeans.  

In the logging example, the First Nation may assert that the land parcel at issue is subject to Aboriginal title due to its prior occupation, and/or subject to an Aboriginal right to harvest cedar and/or other resources as a component of its cultural practices.  To ensure a strong legal position, it is wise to seek legal advice to precisely articulate the Aboriginal rights at stake.  At the accommodation stage, the First Nation still has a range of accommodation options open to it, such as the securing of a logging licence or protection of archaeological sites.  However, in the consultation process, the bar for accommodation is set by clearly articulating the Aboriginal rights that may be at stake, rather than interests that may not be unique to a First Nation, and therefore do not enjoy constitutional protection. 

3) The Duty Requires the Government to Take Concrete Steps to Change its Plans

The key concept of accommodation is that the government must demonstrate that it has taken concrete steps to change its course of action to avoid or minimize interference with the exercise of Aboriginal rights.  The courts have adopted the plain meaning of accommodate in terms such as “to adapt, harmonize, reconcile…an adjustment or adaptation to suit a special or different purpose…a convenient arrangement, a settlement or compromise”.[2]   In its strongest language, one Court stated that the duty to accommodate requires the government “to ensure [aboriginal people’s] representations are seriously considered, and wherever possible, demonstrably integrated into the proposed plan of action”.[3]   Examples of types of accommodation have not typically been identified by the courts, but may include changing of boundaries of a development, adding special terms or conditions on a permit, or not proceeding at all with a project or undertaking. For a more detailed list of accommodation examples, please see the Accommodation Agreements section of the toolkit.

4) Courts are Reluctant to Interfere in Determining Appropriate Accommodation

When a court is called upon to review government conduct at the stage of assessing whether an Aboriginal right exists and whether the right is infringed, it will apply a high standard of ‘correctness’. This standard reinforces the importance of First Nations articulating their interests and concerns on the record in terms of Aboriginal rights, rather than as an interest that a non-Aboriginal person may share, as set out in section #2 above.   However, in assessing whether the government has conducted itself properly at the accommodation stage, the courts are more deferential and will apply a lower standard of ‘reasonableness’. 

As a result, in virtually all decided cases, courts have avoided making any findings on the adequacy of accommodation as the outcome of a given consultation process.  This is consistent with the direction of the Supreme Court of Canada in several leading aboriginal rights cases where the Court stated that the reconciliation of aboriginal rights and government jurisdiction is a matter for negotiation, not litigation.  Courts have therefore focused on the adequacy of the consultation process, such as whether the government provided enough notice and information to the First Nation.  When courts have found that the process was lacking, they typically send the matter back to the decision maker to begin the consultation process anew.  In some cases, the court has maintained a supervisory jurisdiction over the new process.

5) First Nations Do Not Generally Have a Veto

Only in rarest of circumstances, such as where a First Nation has a proven right or a treaty right that will be significantly and unjustifiably infringed by a proposed government action, does the duty to accommodate dictate that a First Nation has the right to full consent to a development, or to a ‘veto’ power.  The Courts have made it clear that consultation is a ‘two way street’, that the government duty involves balancing competing interests, and that both the government and First Nations have a duty to act reasonably in negotiating accommodations. If possible, a First Nation should avoid a flat out refusal of a proposed government action.  Rather, the First Nation should attempt to identify a range of possible accommodations with respect to the proposed decision and put them forward to government in good faith, with a goal to reaching a compromise.  In cases where the record demonstrates that the First Nation simply rejected a proposal outright and would not consider alternatives, the courts have not interfered with the government’s decision to proceed despite the First Nation’s position. 

6) There is No Duty to Reach an Agreement

While the courts have imposed a broad general duty on the government to consult with First Nations and accommodate their Aboriginal rights, they have not gone so far as to impose an obligation to actually reach an agreement.  As stated by the Supreme Court of Canada in Haida Nation: “[t]he accommodation that may result from pre-proof [of aboriginal rights] consultation is just this—seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation.  A commitment to the process does not require a duty to agree.  But it does require good faith efforts to understand each other’s concerns and move to address them.” [4]

This judicial language signals to both government and First Nations that the negotiating parties have the responsibility to reach an agreement through fair compromise, with both parties recognizing and respecting the other’s interests.  The government may bargain hard, but cannot engage in sharp dealing.  The sooner the First Nation tables potential accommodations in the process the better, as it is harder to change a project or development in more advanced stages.

7) An Offer of Money May Not Discharge the Duty in all Cases

Where an adverse effect on an Aboriginal right cannot be avoided, and where there is a broader public interest in a project proceeding, compensation may be an appropriate form of accommodation. However, a unilateral offer of money will not satisfy the duty to accommodate.  In some cases, a unilateral offer of monetary compensation may be seen as an indication that the consultation process was inadequate because the government did not approach it with an open mind to address the First Nation’s interests and concerns.  In the case of Musqueam Indian Band v. British Columbia, the Musqueam opposed the sale of a portion of land that was part of ongoing land claim settlement negotiations. The government stated it intended to proceed with the sale, but offered cash compensation.  The Musqueam objected to the cash offer on the basis that the loss of land was irreparable and not compensable, in light of the diminishing land base required for a treaty settlement.  The Court of Appeal agreed, and suspended the Order-in-Council authorizing the sale for a two-year period, in order to give the parties more time to negotiate appropriate accommodations.  The Court told the government “it is only fair that the consultation process seeking to find a proper accommodations should be open, transparent and timely”. [5]  If the government does not negotiate accommodation in accordance with those principles, a First Nation may consider taking the matter to Court.

8)  One Size of Accommodations Will Not Fit All

Just as the government cannot ‘buy off’ its duty to accommodate, nor can it arbitrarily develop an accommodation agreement and impose it on the other party. In Huu-ay-aht First Nation  v. The Minister of Forests (“Huu-ay-aht”), the government was considering the issuance of logging approvals in Huu-ay-aht territory and offered a pre-developed template agreement with specific accommodations (cash and a logging licence). The amount of cash and timber was to be calculated on a set, population-based formula. The government refused to move off the template and the calculation formula on the rationale that it wished to be consistent in its forestry accommodation agreements with First Nations across British Columbia.  The Huu-ay-aht First Nation secured expert evidence that the projected profit and stumpage from the logging plans was disproportionately high relative to the compensation offered in the accommodation agreement.  When the Huu-ay-aht sought judicial review of the process, after considering the consultation record, the Court found that a generic accommodation package was inadequate: 

While a population-based approach may be a quick and easy response to the duty to accommodate, it fails to take into account the individual nature of the Huu-ay-aht’s claim…in this case, the government did not misconceive the seriousness of the claim or the impact of the infringement.  It failed to consider them at all. The government acted inappropriately and must begin anew a proper consultation process based upon consideration of the appropriate criteria. [6]

The Court directed that the appropriate criteria for the consultation and accommodation process is: (1) a consideration of the strength of the individual First Nation’s claim, and (2) the seriousness of the impact of the infringement.  Although the Court rejected a population-based formula to determine an appropriate level of accommodation, it avoided giving an opinion on an appropriate value of benefits due to the Huu-ay-aht on the facts before it: 

This is not to comment at all on the appropriateness or adequacy of the accommodation that might be achieved at the end of the consultation process.  It may be that the substance of the offer of accommodation contained in the [accommodation agreement] may be sufficient accommodation.  However, that would have to be determined not by a population formula, but by a strength of claim and degree of infringement assessment. That question is deferred until proper consultation takes place. [7]

The Huu-ay-aht case reinforces that the government must approach accommodation negotiations with flexibility and an open mind, and cannot dictate outcomes to First Nations. 

9) Accommodations Can Encompass a Number of Decisions

Major projects often require a number of authorizations and permits.  In such cases, the issuance of one such permit may not pose a significant infringement to Aboriginal rights. But taken together with a several other associated permits, several impacts on Aboriginal rights may well ensure.  For example, the issuance of tenure to put an open net pen in the ocean may not have a significant impact on an Aboriginal right to fish (assuming it does not restrict a First Nation’s access to a preferred fishing ground).  However, the tenure is the basis for another government department to issue a licence to densely stock the cages with a foreign species of fish, which may pose risks to local wild fish.  In the consultation process, a First Nation may wish to address several related decisions simultaneously so that appropriate accommodations are developed to address the cumulative effect of government plans.  If that is a reasonable approach in the circumstances, a First Nation can avoid having to negotiate multiple agreements that may not address the ultimate issues.

10) Third Parties Do Not Have a Legal Duty to Accommodate

By Krista Robertson, Woodward & Company, November 7, 2007  

Citation: Robertson, Krista, 2007. “Accommodation Agreements”. Vancouver: Ecotrust Canada & Aboriginal Mapping Network. November 7, 2007. Available online at the Aboriginal Mapping Network web site: http://www.nativemaps.org/?q=node/2905

Introduction

“[A]ccommodation negotiations are about the distribution of value that is being created through some economic development activity.  Each of the parties – the province, the private sector proponent, and the First Nation—bring something to the table, and the synergy contained in this dynamic only adds to the value being created… Successful accommodation negotiations create the much sought after scenario where everyone is a winner.”  

-Harold G. Calla, Squamish Nation[1]
 

‘Accommodation agreement’ is a general term to describe a written agreement that results from a consultation process about a government decision that has the potential to impact Aboriginal rights.   Other common terms for accommodation agreements are ‘impact benefit agreements’, ‘interim measures agreements’, ‘project support agreements’ or ‘cooperation agreements’.

Accommodation agreements span a huge range of form and content.  Generally, the key objectives of a First Nation in negotiating an accommodation agreement are (1) to reduce the impact of a proposal on Aboriginal rights; (2) to secure benefits from a project or development; and (3) to clarify the roles and expectations of the parties as a development unfolds.  The purpose of this section of the toolkit is to identify some basic components of an accommodation agreement and strategies for First Nations to achieve accommodation agreements that meet the three key objectives cited above.  There is no formula for drafting an accommodation agreement; every negotiation is different and this outline is intended to provide general information only.  This outline is not a substitute for legal advice and should not be relied on as such.  In almost all cases, First Nations should seek legal advice in drafting a proposed accommodation agreement, or at least a legal review of a draft agreement, before the terms are finalized.[2] 

1.  Negotiations May be Staged

Negotiations about First Nation participation in a development may be premature if the First Nation has insufficient information to be assured that the impact of the development will not have unacceptable impacts on Aboriginal rights.  This section of the toolkit assumes that a consultation process has already taken place, all available information has been exchanged and the parties are at the point of negotiating an accommodation agreement on the basis of that information.  However, in more complex negotiations, the parties may wish to develop a memorandum of understanding or an agreement in principle that sets out issues that need to be addressed before negotiations on impacts and benefits proceed.  For example, a First Nation may want to secure a commitment that a government will put the permitting process on hold, or timelines will be extended, to allow for further environmental or cultural impact assessments that it may require before engaging in accommodation agreement negotiations. The purpose of this approach would be to set out a framework for negotiations and to allow time for the parties to actually negotiate once the relevant assessments have been concluded. 

2.  Negotiation Budget

Another important example of what might be in a preliminary agreement at the early stages of accommodation agreement negotiations is an agreement that the project proponent and/or the government will cover the First Nation’s costs of negotiation.

The process of negotiation can be time-consuming and costly.  Costs include travel expenses, per diem rates for negotiators, community meetings, cultural advisors, technical experts, and legal advice.  

Regardless of whether up-front cost contributions are formalized in an agreement, it is important for a First Nation to secure negotiation costs in advance wherever possible to level the playing field and ensure sufficient capacity to negotiate a good deal.  Where the company or government requires a First Nation to sign a contribution agreement to secure up-front negotiation funds, the First Nation should ensure that the funds only obligate the First Nation to engage in good faith negotiations, not to actually agree to reach an agreement about how the development might proceed.  Negotiation funds are just that, and should not have any strings attached.   Like other assessments a company must undertake in deciding whether to carry out a business proposal, assessing whether or not the proposal will cause unacceptable impacts to a First Nation is a cost of business.
 

3. The Parties to the Agreement

Some accommodation agreements are between First Nations and government, others are between First Nations and private companies, and some are tri-partite, involving all three parties.   If the project spans two or more traditional territories, then the agreement may have more than one First Nation signatory.  In these cases, the participating First Nations may first consider developing protocol or cooperation agreements amongst themselves. Some First Nations are represented in agreements through tribal councils or aboriginal development corporations.  In all cases, First Nations signatories should ensure they can demonstrate that they have the legal authority to enter into legal agreements.

There are various strategic considerations for a First Nation in deciding whether to seek an agreement with a government, a private company, or both, and whether these will be separate agreements or one combined agreement.  The types of accommodations a First Nation is seeking, and who has the ability to provide them, will generally dictate whether there with be a joint or separate agreements.  While the government may be in a better position to provide capacity and research funds, royalty sharing, tenures or other commercial resource access rights, or legal land use designations, the company is likely to be in a better position to offer training and employment, service contract opportunities and financial interests in the development. 

While companies often have a strong business incentive to reach fair accommodation agreements so as to facilitate a project, it is important for First Nations to be mindful that the legal duty to consult and accommodate lies solely with the government.  At the end of the day, if accommodation negotiations break down, the legal remedies for a First Nation are against the government.  Therefore, a First Nation should always keep the government ‘on notice’ of its efforts to reach agreement(s) with a company, and should continually use the government’s legal duty to put pressure on companies to negotiate.  Ideally, when a company indicates a wish to participate in an accommodation agreement, the government should make the company aware that it will not approve any of the necessary permits until First Nations interests have been properly accommodated.  Although it is more time consuming, ideally a First Nation will reach accommodations with both the government and the company, as each brings different benefits to the table.

4. Preamble

After setting out the parties, agreements typically start with a preamble, also known as recitals or the ‘whereas’ clauses.  The preamble is generally not legally binding, but it plays an important role in setting out the background of the agreement and the motives and intentions of the parties to enter into the legally binding clauses.  For example, “Whereas Company X is seeking a logging licence within the traditional territory of X First Nation”.   The preamble may also be the appropriate place to give a more detailed description of the project.   

In some accommodation agreements, the preamble takes on a political dimension and includes statements of each party’s view of its jurisdiction.  For example:

Whereas the X First Nation asserts that it holds existing Aboriginal rights, including title and other interests, to the Traditional Territory as outlined in the map in Appendix “A”, including the right to stewardship of lands, waters and resources therein;

Whereas the Province asserts that the lands, waters and resources included in the X area are Crown lands, waters and resources, and are subject to the sovereignty of Her Majesty the Queen and the legislative jurisdiction of the Province of British Columbia.

Other statements may be appropriate for inclusion in the preamble. For example, a reference to broader, related processes, such as treaty or other land claims settlement negotiations or court actions to identify the accommodation agreement as an interim measure until a broader claim is resolved.  The preamble may also contain statements about the parties’ intentions to work together in a spirit of cooperation.

5.  Benefits

The range of possible benefits that could be negotiated into an accommodation agreement is limitless.  What follows are the more common examples, with some commentary on strategies to ensure the benefits will be realized on a practical level.

a) Royalties, Revenue Sharing or Equitable Interests in the Project:  There are many examples of cash benefits.  Where the government is collecting royalties from the private party, such as stumpage fees in the forestry sector, the government is in a better position to provide revenue sharing.  Where the company is not paying large royalties to government, the company is in a better position to share profit.  Royalties may only be relevant in cases where the First Nation has legally established a proprietary right to the lands at issue.  There are many different formulas to arrive at a fair sharing of revenues and so far the Courts have given very little guidance on the matter.  A First Nation’s research into the profit expectations of a project and the expected impacts is very important to assess whether the financial components of an agreement are fair. 

b) Employment:  Terms about employment and business opportunities for a First Nation are common in accommodation agreements.  If members of a First Nation do not have appropriate training to be employed in a development, training and apprenticeship provisions are important.  A hiring policy that gives preference to First Nation candidates and sets targets in numbers or percentages for First Nations employment in a project, or in the broader business of a company, is one means to secure employment opportunities.  In the case of lay-offs, special provisions should be made for First Nations employees who may not have seniority.  Where the company anticipates using a number of sub-contractors, specific provisions should be made to ensure employment of First Nations is a criterion of all sub-contracts.  In addition, policies that address cultural barriers to successful First Nations employment, such as flexible work hours to accommodate traditional seasonal hunting, fishing and gathering activities, should be considered.  Cultural sensitivity training for existing company employees can create a more supportive work atmosphere for First Nations, as can access to personal and career counselling.  Specific positions may be created for a project for First Nations members to act as liaisons or cultural advisors to the company.

c) Business Opportunities:  Business opportunities, such as construction and service contracts, may be a benefit for First Nations as they can provide both revenue and capacity building.  Agreements may include terms providing that First Nation businesses will have a right of first refusal on service contracts, or at least advance notice of a tender and priority contract awards.  Capacity funding and other support from the government or company may be required to ensure a First Nation has the ability to secure and, more importantly, to deliver contracts.

d) Fee Simple Land Grants and Resource Tenures:  Although a company may have private land holdings and may be in a position to transfer a parcel of land to a First Nation, land grants and resource access tenures are generally benefits that can only be provided by governments.  While First Nations have rights to harvest resources for food, social and ceremonial purposes, commercial harvest licences are harder to secure and can provide First Nations with long-term economic opportunities. Grants of land are more rare, and if the government is unwilling to provide land, it may be possible to negotiate designations of Crown land to ‘reserve’ the certain parcels for future negotiations. 

e) Community Infrastructure and Social Programs:  Employment and other benefits may provide opportunities for some members of a First Nation, but not to all members.  To balance impacts and benefits in the wider community, accommodation agreements may have provisions for funding for community resources such as parks, recreation centres, daycares, transition houses and social programs.

6. Impacts

The types of accommodation under this heading address impacts to Aboriginal rights.  As with the benefits section, the examples below are only some of many considerations that may be addressed in an accommodation agreement. 

a) Completion of Studies:  If a use and occupancy study, an environmental impact assessment, socio-economic impact assessment, or a baseline study is required or incomplete, the agreement may expressly provide for its completion, including how the study is to be managed and who pays the cost.   If further information is required with respect to the development, it is important to have a section in the agreement to address what will be done with the information, especially if unforeseen impacts come to light.

b) Joint Management Committees:  An environmental assessment for a project may indicate measures that should be taken to minimize anticipated environmental impacts.  A First Nation may require even more stringent environmental protection measures for a development than those recommended in an assessment, or as required by government regulations, because of a unique reliance on natural food sources and spiritual values related to a pristine environment.  For example, a pesticide management plan that meets government requirements may still endanger First Nations who gather food in affected areas, or the use of a lake to dispose of mine waste may destroy the spiritual practices of the First Nation. 

A joint management committee or an environmental stewardship committee involving representatives of the First Nation, the company and the government can play a key role in developing and implementing environmental protections that are appropriate to the importance of the resources at risk.  A joint committee can also oversee the completion and integration of impact studies into management plans, direct further studies where required, and ensure that management is responsive to ongoing environmental and cultural site monitoring.  When unforeseen impacts or new circumstances arise, a joint committee can play an invaluable role in ongoing consultations and provide the First Nation with input into decision-making.  Where a management committee is established in an agreement, the agreement should set out the details of composition and rules governing their powers and meetings.

c) Ongoing Site Monitoring: An important aspect of environmental protection, especially where government regulations and compliance mechanisms are weak, is ongoing site monitoring.  Various arrangements can provide a First Nation, or an independent monitoring agency, with access to a site, data and other information so that the First Nation can ensure that environmental standards are being maintained.  Ideally, such provisions will provide funding for First Nations participation in monitoring, including technical expertise, as well as mechanisms that make it clear what steps are to be taken if concerns arise. 

d) Site Protection and Access Arrangements:  An accommodation agreement may include provisions for the protection of important cultural or harvesting sites.  For example, an agreement may specify that logging cannot take place in key hunting areas, or that certain tree stands used for bark harvesting remain untouched.  Where a development may cut off access to a site of importance to a First Nation, an agreement can set out right of way or access arrangements to ensure ongoing accessibility.

e) Terms and Conditions on Permits:  A good strategy to create legal security that a development will not go forward without adequate protection for Aboriginal rights, is for appropriate terms and conditions to be directly inserted into the licences and other permits issued by the government. For example, a licence to farm salmon in open net cages may require the farmed fish to be removed from the cages in the event of a disease outbreak to reduce the risk of transmission to wild stocks.  As another example, a logging licence may grant less than the proposed volume of allowable cut in order to maintain sufficient ecosystem biodiversity.  In some cases, if restrictions are put directly into a permit, they need not be addressed in an accommodation agreement, as they will be enforceable through the permit.  However, such conditions may form an important part of accommodation negotiations, and they may be reinforced through provisions in an accommodation agreement, such as an ongoing monitoring arrangement. 

7. Without Prejudice Clause

In order to protect underlying legal claims to Aboriginal rights,including title, it is very important that all accommodation agreements havestrong “without prejudice” clauses. There are a variety of possible terms; therefore, it is advisable toseek legal advice to ensure there is sufficient protection in theagreement.  Sample clauses are asfollows:

Nothing in this Agreement shall be construed so as to prejudice or derogate from any Aboriginal Interests of the X First Nation arising from their asserted traditional use and occupancy of their Traditional Territory, nor from any treaty or land claim agreements that may be negotiated;

This Agreement, and the processes set out herein, is not a treaty or land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982;

For greater certainty, this Agreement is not intended and shall not be construed to create, define, recognize, affirm, suspend, limit, deny, derogate or abrogate any Aboriginal rights or title of the X First Nation which may exist or be acquired in the future within the meaning of sections 25 and 35 of the Constitution Act, 1982;

Except in proceedings directly related to the enforcement of this Agreement, the contents of this Agreement and any record created pursuant to it is not intended to limit any position any party may take with respect to future negotiations, and is without prejudice to any legal position that has been or may be taken by any party in any court proceeding, process or treaty negotiations or otherwise, and nothing in this Agreement shall be construed as an admission of fact or liability in any such proceeding or process;

Nothing in this Agreement, or any decision taken pursuant to it, will derogate from any existing legal obligations the Province or Canada may have to consult with the X First Nation relating to any decisions that may impact the Aboriginal rights of the X First Nation.

Notwithstanding the inclusion of such “without prejudice” clauses, a First Nation should be aware that if it has entered into an accommodation agreement, the government will attempt to rely on the agreement to demonstrate that it has discharged its legal duty to consult and accommodate, so to that extent, the agreement may not be entirely without prejudice.  Further, while such clauses will protect the underlying legal claims of a First Nation, there is the unavoidable reality that a resource extraction or development project will inevitably impact aboriginal rights in practice to some extent.  For example, an accommodation agreement with respect to a logging plan may be declared to be without prejudice to an underlying Aboriginal title claim, but in the long run, the land base the First Nation may acquire under a land claims settlement or court declaration will be very different in character if it has been logged.  For this reason, it is important that First Nations take the ‘long view’ of their interests in negotiating accommodation agreements, such as ensuring that appropriate environmental and cultural protections are in place to protect their territory.

In addition to these standard clauses, a First Nation should pay particular attention to any clauses the government or a company may be seeking, which indicate that in exchange for the accommodations set out in the agreement, the First Nation consents to a development.   It is ideal if the agreement contains no clause of this nature.  An accommodation agreement should not be a ‘blank cheque’ for a development to proceed, particularly in light of the fact that accommodation agreements are typically negotiated at the beginning of a project, when all of the potential impacts are not yet realized.  For example, a First Nation should not agree to a clause that provides a blanket approval of a development.  Where the government or company insists on a term regarding consent, the First Nation should strongly negotiate to have the clause limited as much as possible; for example, there may be a statement that the agreement is intended to address the government’s duty to consult and accommodate, but where new information or requirements for further authorizations arise, the First Nation is entitled to full consultation and accommodation.  Seeking legal advice with respect to these types of clauses is strongly recommended.  

8.  Dispute Resolution

Given that one of the purposes of an accommodation agreement is to avoid litigation, it makes sense for an agreement to contain dispute resolution provisions in the event of a disagreement with respect to the interpretation of the agreement.  There are a number of options in this regard.  The provisions can oblige both parties to appoint representatives to meet as soon as practical and to exercise all reasonable efforts to resolve the dispute; if these efforts fail, the parties can agree to mediate the dispute with the assistance of an independent mediator.  Generally, there are associated provisions that the mediator must be acceptable to both parties, that the parties will share the cost equally, and that the mediation is non-binding.  If mediation fails, either party could proceed to court. 

Dispute resolution provisions can go another step beyond non-binding mediation and include a right by either party to submit the matter to an arbitrator, whose decision shall be binding on both parties.  While arbitration is less costly than litigation, First Nations should approach this option with caution because an arbitrator with a general orientation in commercial arbitration may not be equipped to consider the unique Aboriginal rights aspects of an accommodation agreement.

9. Amendments and Termination

An accommodation agreement may be in force for a long period of time, during which the positions of the parties and the circumstances underlying the agreement may change.  Although it goes without saying that any agreement can be amended at any time by mutual agreement of the parties, ideally an accommodation agreement will contain provisions that establish a process for the parties to periodically evaluate whether the agreement is working.  All agreements should have provisions whereby either party can terminate the agreement, typically with notice in writing and a specified notice period, such as ninety days.

10. Confidentiality

In some cases, a company may require that confidentiality provisions form part of an accommodation agreement.  This may apply to the whole agreement (except in the course of legal proceedings about the agreement itself), or only to confidential business information received in connection with the agreement, such as financial and technical data.  Although trade secrets may not be negotiable, depending on the circumstances, a First Nation may or may not agree with more general confidentiality provisions.  In an agreement between a First Nation and a private company, it may be advantageous to the First Nation that the agreement be kept confidential so that the First Nation can continue to press the government for accommodations and the agreement cannot be put ‘on the record’ in the event that the First Nations needs to go to court to seek a remedy for the government’s failure to consult.  Further, a First Nation may not want a company to publicize the agreement and promote a public impression that the particular industry is generally acceptable to First Nations, or risk misinterpretation or misinformation that may cause political damage to a First Nation government.  In some cases, accommodation agreements are entered into by First Nations, not because they support the project, but because the development is likely to go ahead in any event, and an accommodation agreement functions to at least mitigate or minimize the impact. 

For First Nations as a collective, the downside of confidentiality provisions are that the First Nations are not at liberty to share information and work together to strengthen their bargaining position with a particular company or a particular industry.  Further, if a First Nations signatory agrees to keep the agreement confidential, it may face challenges in balancing transparency to its membership with its obligations under the agreement.

11. Ratification

The process for ratifying an accommodation agreement is generally a matter of internal governance.  At the outset of the consultation and accommodation negotiation processes, First Nation negotiators may be given a broad mandate to reach an agreement. Alternatively, they may have a narrower mandate that requires going back to the First Nation’s government and/or the membership to ratify an agreement in principle before the agreement can be legally binding.  Either way, a First Nation’s negotiators should make it clear to the other parties what the scope of their authority is and nature of the anticipated ratification process. 

Conclusion

Regardless of the ultimate ratification process, the key goals of First Nations in reaching an accommodation agreement are more likely to be achieved when the negotiation process is perceived to be open and transparent by the membership who will be impacted by a development.  In providing information to the broader leadership and/or membership about the negotiation process, it may be useful for negotiators to explain that the agreement is an interim measure and the intent of accommodations are to protect rights, not to extinguish them.  However, this does not change the fact that accommodation agreements can pose difficult trade-offs, and a community may struggle with divisions as a result.  While there is no easy answer, the identification of objective criteria—such as the number of jobs created, the First Nation’s share of the profit margin relative to the total expected profit, comparison to other agreements and the relative strength of environmental protections—can go a long way in helping a First Nation to assess the gains and risks of the agreement in order to determine whether or not it offers a net benefit.  In the event that government or private parties are unwilling to act reasonably in reaching accommodations, court action may be considered.  Going back to first principles, if a First Nation puts its Aboriginal rights at the forefront of negotiations, it should be able to rely on a court to intervene if those rights are not adequately accommodated. 

By Krista Robertson, Woodward & Company, November 7, 2007   

Citation: Robertson, Krista, 2007. “Strategies For Consultation With Limited Capacity”. Vancouver: Ecotrust Canada & Aboriginal Mapping Network. November 7, 2007. Available online at the Aboriginal Mapping Network web site: http://www.nativemaps.org/?q=node/2906

 Introduction

A common experience of First Nations engaging with government and private companies about resource use decisions is a lack of adequate human and financial resources to fully participate.  This is a serious concern because First Nations have a strong interest in being able to be adequately involved in consultation.   Information that comes to light in the consultation process has important outcomes with respect to the government’s legal obligations to accommodate a First Nation’s Aboriginal rights. 

It has been less than a decade since the courts have begun to strongly enforce the government’s legal duty to consult and accommodate.  Although this enforcement is a positive development in the law, the reality is that within a short period of time, First Nations have experienced a significant increase in demands placed on their land and resource departments and their governments to process a very high volume of resource use ‘referrals’.[1]  Hopefully, First Nations’ capacity to meaningfully participate will continue to develop to meet to this increased demand.  Ideally, high-level government policy reform and funding programs, as well as First Nations’ economic growth and development through fair resource benefit sharing, will aid in the process.  However, there currently remains a problematic gap between the demands on First Nations to participate in consultation and accommodation processes to keep pace with development, and the limited resources available to do so.  This section of the toolkit does not provide a solution, but some strategies that may help to address this ongoing problem. 

1.  Make a Preliminary Response Requesting a Budget to Support Consultations

Before responding to the proposed decision in a substantial way, a First Nation might make a preliminary written response to the initial referral, expressing a wish to participate and setting out the costs of participating, with a request that the government and/or proponent contribute to the costs.  The letter may state, where applicable, that the First Nation has rights that may be impacted by the proposal, and that it has insufficient resources to adequately respond.  Funding support is more likely to be provided by government and private parties where the costs are clearly defined.  For example, the letter might set out: standard costs for travel if meetings take place outside the community, meeting room rates if the meetings take place in the community, hourly rates for land and resource department staff, cultural advisors, legal advisors, and costs of community meetings.  Some First Nations have a General Consultation Policy that can be attached to an initial response letter setting out such details and other expectations for the process, such as a communication protocols.  If the government and/or the company seeking approvals are willing to cover the costs of consultations, but require the First Nation to enter into a contribution agreement to receive the funds, the agreement should make it clear that acceptance of money does not indicate support for the project.  The purpose of a consultation funding contribution is to enable negotiation, and should not in any way pre-determine outcomes.

2.   A First Nation Should Not Refuse to Participate if Funding is Not Provided

In several cases, the courts have recognized participation funding for First Nations as one factor in determining that the government has met its duty to consult.  However, no court has gone so far as to declare that the government’s common law duty to consult includes a positive obligation to provide First Nations with participation funding.[2]  Further, the courts have generally held that consultation is a ‘two way street’ and that First Nations have a responsibility to participate in the process.  Therefore, a First Nation should be very cautious about making general declarations that it will not participate in consultations without funding, as this may compromise its legal position.  However, if capacity is an issue, First Nations should consider making it clear in writing that without proper funding, the ability to meaningfully engage in the process will be seriously compromised, which may result in an unjustified infringement of Aboriginal rights.  This will be important evidence if a First Nation seeks court intervention in a case where a consultation process has been seriously compromised by a lack of resources.

3. Refer the Government to Information that Has Already Been Provided in Previous Consultations or is Publicly Available

A First Nation may not need to provide the government with general information about its Aboriginal rights for every referral.  For example, if a First Nation is engaged in treaty negotiations, it may point to statements of intent and other information previously provided to the government and state that the government is aware, or should be aware, of the First Nation’s rights.  If a First Nation has provided traditional use studies, territorial maps, statements from elders or other information in other consultation processes with the government, it may be able to refer to these to avoid the time and expense of having to reproduce the same documents for a similar referral.  Further, a First Nation should strive to hold the government accountable to inform itself about the potential impacts of a decision.  General evidence of a First Nation’s rights may already be publicly available, such as historical documents, ethnographies, and archaeological reports.  In responding to a referral, a First Nation may first ask the government to identify what research it has done to assess whether or not a First Nation’s rights may be impacted.  This does not replace the First Nation’s obligation to provide more specific information where required, but it can save precious resources.

4.   If New Information is Required, Put the Ball in the Government’s Court

Wherever possible, a First Nation should put the onus on the government to provide required information to assess the impact of the proposal on its Aboriginal rights.  Naturally, some information will be known only by the First Nation; in such cases, the onus is on the First Nation to bring it forward.  It can be a matter of dispute whether the First Nation has the onus to demonstrate that the right would be infringed by the proposed activity, or whether the onus is on the government and/or proponent to demonstrate that activity will not have an adverse effect.  Often, the matter requires detailed study and scientific or other expertise.  If a First Nation does not have the resources to carry out this assessment, it should clearly communicate its concerns and assert that the government has an obligation in this regard.  For example, it may state that it has fisheries interests in or near a proposed project area, and request an assessment by a professional biologist on how the project might impact the fishery.  A First Nation should ensure that all requests for studies or other information are recorded, and insist on having a say in who does the study and how it is carried out, to ensure that the research is independent and properly thorough.  A First Nation will be in better legal position if it makes reasonable, direct requests for the information required to assess potential impacts, rather than simply stating it doesn’t have capacity to assess the impacts. 

5.  Time Extensions May Be Required

Referrals from government and companies may state that the First Nations must respond prior to a specified time, such as forty-five days from the date of the letter.  There is no legal basis for a government or private party to set a deadline for a First Nation’s response time, unless the First Nation has previously agreed to a timeline.  A First Nation should not hesitate to request more time if required.  A simple letter requesting more time should suffice.  Adequate time to respond cannot be unreasonably denied.   However, a First Nation should be aware that it cannot unreasonably frustrate the consultation process; therefore, excessive delay could work against a First Nation.  This is particularly true where further investment and approvals for a project may be advancing.   If a First Nation is aware that the project is advancing in the preliminary stages of consultation, it should put the government and the proponent on written notice that irreversible activity should cease pending consultation.

6. Seek Funding and Partnerships with Other Agencies to Boost Capacity

In addition to seeking contribution funding on a referral-by-referral basis, a First Nation should take steps wherever possible to develop its general capacity, such as full-time land and resource staff, office and field equipment and data.  Annual government funding programs may be helpful in this regard.  Collaborating with environmental organizations and other First Nations to share information and resources on a general or a project-by-project basis can also help a First Nation to build capacity.  In some cases, evidence of such efforts may be relevant in a judicial review to show that the First Nation made all efforts to participate in consultations.

7. Try to be Create Efficiencies Wherever Possible

The case studies section of this toolkit offers practical strategies from a number of First Nations for establishing efficient systems to process referrals.  However, even the best systems can break down due to sheer overload.  If a First Nation becomes aware that a response had been significantly delayed because it is simply ‘buried’ by other referrals and demands, it should communicate as soon as practical with the government advising of a backlog and an intention to respond at a later time.  If capacity is fundamentally strained, a First Nation may have to consider prioritizing responses to proposals that may have significant impacts over proposals that are unlikely to have an impact.  In these circumstances, if possible, a First Nation might consider sending a short letter stating that a lack of response should not be deemed to be consent to any impacts on Aboriginal rights.  The letter might also request notice of any developments or changes in the proposal, so at least the project can be monitored.

Conclusion

It is difficult to reconcile a First Nation’s right to meaningful participation in consultations about land and resource use with the fact that many First Nations lack enough resources to do so.  Firm recognition by the courts of the government’s legal duty to consult is a positive legal development to enhance protection of Aboriginal rights, but the volume, pace, and complexity of consultation processes First Nations are expected to participate in may come as yet another burden on a First Nation’s administration and government.   As all parties adjust to the new reality in that consultation is required for virtually every decision that may have an impact on Aboriginal rights, the situation will hopefully improve.  In cases where a lack of resources is a barrier to adequate participation, a First Nation should document the problem so both the government and the courts can be made aware of it.

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From the Walter and Duncan Gordon Foundation:

In Canada, particularly in the north, Impacts and Benefits Agreements (IBAs) are typically negotiated between a project proponent and local community leadership where a significant project is proposed for development on an indigenous nation's traditional lands. IBAs are formal, written agreements that help to manage the social, cultural and environmental impacts associated with a development and to secure economic benefits for local communities affected by that development. Though most commonly used in mining, an IBA may also be negotiated for an oil or gas project, hydro or forestry development or even for a national park or protected area. Depending on the region, IBAs may be referred to by such names as Access Agreements or Access and Benefit Agreements.

However, there is very little publicly available information on best practices or models for negotiating IBAs, mainly due to the fact that terms of most IBAs are confidential. Although there is now a very modest amount of information in academic literature, there are currently no community-focused tools outlining best practices or advising on how to negotiate IBAs. Without such information, community negotiators are often wholly reliant on their legal advisors. As well, community members at large often feel shut out of the process. Although some IBAs are put to a community vote, there is little to benchmark or compare the negotiation process and outcome with. The confidentiality requirement, as well as other common elements such as "project support" clauses, has implications for the political power and pressure a community is able to leverage over the creation and unfolding of the project in question.

At the Gordon Foundation's first Northern Policy Forum, held in 2007 in Fort Good Hope, NWT, the need to look closely at innovations in IBAs emerged as a shared desired outcome. In discussing the broader issue of obtaining revenues from natural resource development, in particular to benefit future generations, frustration was expressed about the inaccessibility of quality information on IBAs. Participants urged the Foundation to develop an IBA "model" and toolkit for communities.

The Foundation has asked Ginger Gibson, a Yellowknife-based anthropologist and mining engineer specializing in aboriginal engagement with the mining industry, to steer this process. Ciaran O'Faircheallaigh of Griffith University in Australia, a specialist on public policy, resource economics, social impact assessment and Indigenous studies who works regularly with Aboriginal communities in Canada, is serving as an advisor and co-author.

They are currently drafting a discussion paper that identifies the areas and issues on which information is needed, covering the key phases and information needs for communities that are seeking to negotiate an IBA. Gibson and O'Faircheallaigh are scoping the key issues, information needs and materials required, and convening a dialogue with an "expert working group" of about 15 northerners, key thinkers and decision-makers on the status and practice of IBA negotiation. The next phase of the project will be building the actual Toolkit, which will start in summer of 2008, with details to be worked out in consultation with the expert working group.

The toolkit is expected to help communities and their advisors understand the range of possibilities in negotiation, outcomes and implementation opportunities, as well as providing tools to better prepare for negotiation processes. While the specific design of the toolkit is to be determined, it may include a full range of materials - from short plain-language (or multi-language) primers, to full technical primers, to web-based materials, as well as potentially video-based learning materials.

Key issues likely to emerge across every phase of negotiation, include time (how do you allocate time to various stages?); money (where do funds come from? What is a strategy for getting funding?), and skills (what are the different skill sets needed in each phase?). The material in the initial discussion paper - to be tested with and augmented by the expert working group - will start from the Cape York Model for Negotiation which has been used to guide communities in many Australian negotiation contexts.

For more information about this initiative, contact Ginger Gibson at vgibson(at)interchange.ubc.ca.

Download a brief backgrounder authored by Ciaran O'Faircheallaigh, reflecting on the Australian experience with Impacts and Benefits Agreements and looking at three actual models, highlighting their advantages and drawbacks.

Order the issue of Journal of Aboriginal Economic Development which includes an article on Mining Agreements and Aboriginal Economic Development in Canada and Australia (Volume 5, Issue 1).

Order this existing Guide to Impact and Benefits Agreements (published in 1999 by the Canadian Institute of Resources Law), or read an older series of articles from the journal Northern Perspectives.