Communities, Corporations and the Crown: Pursuing indigenous empowerment through the conceptual ambiguity of Impact and Benefit Agreements
Creators: name: Verrier, Hugh
Publisher: name: Apollo - University of Cambridge Repository
Year: 2015

description: The historical role of extractive industries in global economic development is complex and controversial. Although mines and oil wells can be forces for prosperity, the wealth they generate comes at great costs: environmental degradation, vulnerability to economic boom/bust cycles, and the exploitation of indigenous peoples (Sawyer et al. 2012, Evans et al. 2002, Ginger et al. 2012). The impacts of mining on indigenous communities are of particular concern in the context of Arctic extractive industry. In an era of global markets, profits from extraction are globally distributed to shareholders and states, while the environmental and socioeconomic costs of development tend to concentrate locally on neighbouring communities (Illsley 2010) ? often indigenous communities. In recognition of this ethical problem, Arctic governments have formed various legislative and regulatory measures governing development. Canada in particular has produced an important and ubiquitous tool: The environmental assessment, or EA (Anderson 2003, Belanger 2008). This process aims to protect indigenous peoples by making development contingent on a thorough environmental review. Once the review has taken place, the government produces recommendations for local impact mitigation that industry is required to enact in the course of development. However, the EA has been widely criticized as narrow in scope, paternalistic, bureaucratic, and for excluding indigenous voices (cf. Bradshaw et al. 2013, Fidler et al. 2007, Fidler 2009, Ross 2004, Ross 2006 and Wismer 1996). Furthermore, historical tensions between Canadian indigenous peoples and the government have produced an atmosphere in which negotiation is characterized by mistrust and resignation. In such a climate, indigenous peoples likely view the eventual development of their lands as inevitable, and the consultative process as token and insubstantial (cf. Gibson 1978). All of these factors undermine the original purpose of the EA: co-operative mitigation of the costs of development to indigenous peoples. In light of these inadequacies, developers and indigenous communities have increasingly circumvented Canadian regulatory processes by negotiating impact mitigation and benefits directly (Kennett 1999). The resulting agreements, known most commonly as Impact and Benefit Agreements (IBAs), take the form of a private contract between industry proponents and affected aboriginal groups. Despite their increasing use, the efficacy and legal status of these agreements are poorly understood. Their status as a private contract means that their details are often confidential, and not available for public scrutiny (Galbraith et al. 2007). However, there is a growing body of academic and legal literature on IBAs, and on their relationship to EAs in particular (e.g. Birk et al. 2011, Bradshaw et al. 2013, Caine et al. 2010, Cowell et al. 2011, Fidler 2009, Fidler et al. 2007, Galbraith et al. 2007, Gibson et al. 2010, Lambrecht 2013, O'Faircheallaigh 2012, O'Faircheallaigh et al. 2005, Prno 2007). In light of the potentially serious impacts of mineral extraction, and given the widely observed inadequacy of EAs, IBAs merit further study. Canada?s north is plagued by high rates of suicide, expensive and unreliable public services and high costs for basic amenities such as food (cf. Hicks 2007, ADHR 2015). Theoretically, IBAs may represent the opportunity not only to mitigate the impacts of mineral extraction, but to capitalize on mining development and improve community welfare and prosperity (Fidler 2009). As Ginger et al. put it: ?Mining generates risk of environmental and social harm for Indigenous peoples but can also generate substantial revenues for them, creating opportunities for community development in a context where economic and social disadvantage is the norm? (2012). For these reasons, it is important to grapple with the serious conceptual, legal, and practical questions regarding the nature and use of IBAs. Thus, this paper is motivated by a central question: how can an indigenous community best capitalize on IBAs? This question is broad, and has already been addressed from a range of perspectives, including law, activism, academia, and policy (cf. Fidler et al. 2007, Prno 2007, Prno et al. 2010). To approach this question from a new perspective, I employ a theoretical method for understanding IBAs. Specifically, I draw on contemporary literature to argue that there are broadly two possible interpretations of IBAs: a ?distributive justice? interpretation, and an ?exchange? interpretation. In doing so, I argue that the ?two interpretations? framework is unprecedented in IBA literature, although some authors have either embraced one interpretation over another, or alluded to multiple interpretations in passing (e.g. Keeping 1999). In order to reconcile the existence of these two interpretations, I claim that they are not mutually exclusive, and tentatively identify the conditions under which one of the interpretations might be more productive to an indigenous community. In essence, each interpretation logically implies a distinct set of negotiating tactics; if a community can adopt the right IBA interpretation, then they might effect a better IBA outcome. However, before I can propose these two interpretations, it is important to explore the context in which IBAs occur. Therefore, in chapters one and two, I provide a brief and non-comprehensive overview of aboriginal law in Canada. Chapter one explores the jurisprudence of aboriginal rights and title. Chapter two explores the Crown?s fiduciary duty to aboriginal peoples. These chapters are important for two reasons. First, the relationship between IBAs and Canadian aboriginal law is poorly understood (Bradshaw et al. 2013, Fidler at al. 2007). It is often argued that IBAs stem from, or arose in response to, Canadian aboriginal law (Prno 2007). Therefore, cursory knowledge of aboriginal rights and title is necessary to appreciate the historical context of IBAs. Second, the Crown?s fiduciary duty to aboriginal peoples gives us an insight into the conceptual tensions and contradictions of IBAs. I argue in chapter two that the concept of fiduciary duty ? as it is applied to aboriginal law ? is inherently dissonant and ambiguous, and that this is representative of aboriginal law more broadly. Later, in chapter five, I argue that these tensions are mirrored in IBAs. Thus, problematizing the Crown?s fiduciary duties helps unearth the tensions inherent within IBAs. In chapter three, I step outside the realm of law to examine broader political elements of aboriginal rights. I examine aboriginal treaties, and introduce some of the conceptual questions that surround these nation-to-nation (Hall 2011) agreements. Then I turn to the 1969 Statement of the Government of Canada on Indian Policy, also known as the White Paper. I argue that the White Paper implicitly expresses a philosophical position on aboriginal rights, and that this position has since been rebutted by the Canadian judiciary. Therefore, the White Paper provides a useful counter-narrative to the Supreme Court?s position on aboriginal rights. In chapter four, I take two historical case studies of IBAs: the 1974 Strathcona Agreement, and the 2002 Voisey?s Bay IBA with the Inuit. Drawing on primary and secondary sources, I trace these IBAs from the discovery of minerals, through the negotiations of the terms of development, to the drafting and signing of the IBA. This historical approach to IBAs is valuable, in part because it incorporates the complexities that arise when external forces inevitably shape an IBA?s development and character. The two historical case studies prepare me to introduce and explore two different ways of interpreting IBAs in chapter five: the ?distributive justice? interpretation and the ?exchange? interpretation. I first provide an overview of each interpretation, and argue that authors tend to favour one interpretation over another. To establish the existence of these categories of interpretation, I draw on IBA literature. Finally, I return to the question of how indigenous communities might best derive benefit from the IBA process. To this end, I argue that neither IBA interpretation is intrinsically correct. Rather, depending on context, one of the two interpretations might be more productive for a community. In this context, I mean ?productive? in the sense that each interpretation implies a distinct set of negotiating tactics, and context will determine which set of tactics are more appropriate ? and, by extension, which interpretation would be most productive for a given community. This argument might explain why the same community approach can differ in efficacy from one IBA negotiation to another. There is no ?one size fits all? method ? each IBA must be evaluated on its own terms. I believe that my interpretation framework, however theoretical, suggests a method for analysing IBAs on a case-by-case basis. Specifically, I argue that the interpretation framework provides insight into the comparative efficacy of indigenous approaches to IBA negotiations. I conclude by critiquing my argument, and addressing areas for further research.