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The role of impact and benefit agreements in the Indigenous engagement process

IBAs and aboriginal engagement

Impact and Benefits Agreements (IBAs) have become an increasingly relied-upon collaborative planning tool in negotiations between companies and Indigenous communities regarding land and resource projects. It is the finding of recent research that these agreements have emerged due to shortfalls in the current system, and because of increasing environmental and social concerns regarding development that affects Indigenous and northern communities most significantly. (1)

Challenges

Overall the research shows IBAs present significant advantages for both parties as part of a larger collaborative planning process, but the agreements do have some challenges associated with them.

Environmental and social concerns have grown alongside development in the last quarter decade. And while the Crown’s duty to consult and accommodate is currently contained in the Environmental Assessment, that process does not stipulate outcomes or follow-up. The result has been many instances where agreements are not honoured or implemented, and in situations where benefits are unequally distributed. Greater political instability surrounding these projects has affected their development.

In an effort to gain more certainty, companies have begun the Indigenous engagement process early in the lifecyle of a project and implementing their own bilateral private negotiations – IBAs.

According to the study, while there is still speculation as to the effectiveness of IBAs in the larger collaborative planning process, there is unilateral agreement that early Indigenous engagement and meaningful discussions has been positive for both parties. Companies receive valuable “social license” that allows them to proceed without encumbrances, and Indigenous communities have more direct say and benefit in terms of what takes place within their territories.

IBAs and the collaborative planning process

The study author identified four themes that emerged from the research and interviews with IBA practitioners regarding how IBAs contribute or detract from the collaborative planning process. These are as follows:

  1. The relationship between IBAs and the Duty to Consult and Accommodate – Given that the Crown usually starts its consultation process after IBAs have been signed, these agreements are de facto replacing the Crown’s role to consult and accommodate. The general feeling is that there is less chance for collaboration and meaningful engagement between Indigenous communities and the Crown.
  2. Effectiveness of IBAs – IBA negotiations set the stage for collaborative planning through trust building, enhanced communication, and shared risks and benefits. Industry can count on project certainty, and a bettered corporate image from agreements with communities. Communities have the chance to have direct discussions about potential impacts, appropriate mitigation and accommodation. However, implementation can be undermined by capacity strains in communities.
  3. Collaborative Negotiation Processes and implementation of Agreements – The varied outcomes of negotiations result from such factors as the varying levels of technical and governing capacity of the players involved, and the changing political and economic climates of Indigenous communities. Indigenous communities will benefit in this regard from greater development of bureaucratic capacity and governance. Unsuccessful implementation of agreements due to a variety of factors is an issue that could be solved through the creation of IBA implementation committees that see the process from beginning to end.
  4. Capacity Development via IBAs – IBAs present significant opportunity for capacity development as Indigenous groups can negotiate the types and amounts of benefits related to a project. Capacity is increased through the negotiation process, and contributes to the overall collaborative planning process. (2)

Communities that benefited most from IBAs were the ones that worked in collaboration with other potentially affected communities, ones with negotiation capacity, and ones that already had some control over their traditional territories.

Those consulted during the research indicated the need for cumulative effects assessments, taking multiple projects into account over longer time frames.

More research into IBAs is also needed to determine the contribution to the collaborative planning process. Overall they are seen as a useful tool that builds trust, promotes direct communication between the parties, and increases capacity. Challenges relate to implementation failures and capacity gaps.

While the outcome of IBAs cannot be predicted and depend on the different players involved, the notion of Indigenous engagement and meaningful discussions early in the process of collaborative planning is seen as a substantial overall benefit.

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(1) Wright, Adam. “Executive Summary, Impact and Benefit Agreements: the Role of Negotiated Agreements in the Creation of Collaborative Planning in Resource Development.” June 2013. PDF file.

(2) Ibid.

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