Developing positive working relationships and partnerships with First Nations based on early, transparent and consistent communication will help with permitting predictability for any exploration project. Section 6 sets out a variety of best practices for First Nation engagement and consultation, but it is useful to look at the pivotal role that project specific agreements such as a Memorandum of Understanding, a Communication Agreement or an Exploration Agreement, can play in the engagement process. Regardless of their specific purpose, exploration stage agreements are separate and distinct from more advanced “project” stage agreements, often referred to as Socio-Economic Cooperation Agreements, which may be negotiated if an exploration project eventually moves toward mine development. Project specific socio-economic cooperation agreements typically include much more significant obligations on the part of both parties than what would be appropriate at the exploration stage.
It is important to point out that First Nations may not feel comfortable negotiating a formal agreement during the early stages of an engagement process. This is why early discussions are useful. Both parties can discuss what makes sense at the particular stage of exploration a company is looking to implement. Some First Nations may want to wait until a project is at the pre-feasibility or even feasibility stage or work. Companies and First Nations can have good working relations without an agreement, and this comes from on-going dialogue and continued effort to sustain and enhance the relationship. In short, written exploration agreements are not a “must”, and while exploration agreements are good and useful the timing of when one is put in place can vary greatly depending on the project and the First Nation or Nations with whom the company will want to engage.
Where a First Nation and company determine that an agreement would be useful, the negotiation and implementation of any type of agreement depends upon:
- the state of the relationship between the First Nation and the exploration company;
- resources available within the First Nation to engage and develop a project specific agreement; and,
- direction provided by First Nation citizens to political leadership on the comfort level with a specific project.
Given the above points, it is critically important to appreciate that an early and respectful outreach to First Nations will set the tone for the ongoing relationship, and where considered appropriate, the development of a formal project specific agreement. It is useful to consider following basic guidelines in the preliminary outreach to First Nations:
- Determine which Traditional Territory(ies) or non-treaty Traditional area(s) the exploration project lies within using the web based application for this guide.
- Conduct research using the web based application for this guide on First Nation protocols, guidelines and/or practices for engagement and consultation.
- Establish First Nation lead contacts including the First Nation’s Lands & Resources Department. If this department is not the appropriate point of contact, you will be directed to the proper pathway which may be at the political level or through the First Nation’s Development Corporation.
- Designate a lead person within the company to communicate with the First Nation to ensure consistency of messaging and allow for relationship building. In some cases, using members of the management team on a consistent but interchangeable basis is also a viable option.
- Determine if the area has previously been subject to exploration, mining or other resource development projects and whether such development(s) were positive or had adverse environmental or socio-economic impacts.
- Prepare informative but non-technical, plain language background information documents about the proposed project for the First Nation citizens.
- Information packages should be project specific but also place the exploration project within the overall spectrum of the mine development process in order to help clarify and set reasonable expectations for what can be achieved in an exploration agreement, if one is developed
- Information gaps must be addressed in an ongoing manner. Systematic and regular communication is critical, even if nothing is happening with a project. Avoid the ‘trap’ of communicating on ‘issues’ only.
- Be patient with the process and take the time necessary to make the process work and build momentum.
- Do not use consultants or lawyers as the lead company contacts. Senior management of the company needs to not only ‘own’ the engagement process, but to also be seen by the local community as actively supporting and ‘believing’ in the engagement process.
- Think carefully about what the project can credibly and successfully offer in an Exploration Agreement prior to beginning negotiations, and the kinds of expectations the company has in return.
- Community involvement with citizens is critical; the more an exploration company knows about a community and the more the community knows about the company will help to provide a solid platform for partnerships. Always remember that being a good corporate citizen is an ongoing process.
These early engagement guidelines help to underscore the fact that successful exploration agreements must respect the interests of all parties. They need to be practical and proportionate to the nature, scope and duration of the exploration activities and not place excessive obligations on either party. The key to success is to recognize that project specific agreements should set out a practical number of basic deliverables and understandings that will assist the parties in developing a relationship for the long term should the project move forward to the advanced exploration or mine development stages. Although new socio-economic agreements will be negotiated should a project advance, it is important the parties not attempt to negotiate the “end agreement” at the beginning of the exploration process. It is far better to negotiate incremental agreements on project components that can help build momentum, trust and an “emotional attachment” to the project.
Moving from the preliminary stages of First Nation engagement to formalizing a relationship in a written agreement, it must be appreciated that there is no “one size fits all” template to follow. Each agreement will be customized to suit the particular nature of the project and the specific circumstances and interests of the parties and can include whatever topics the parties see as valuable to building a positive relationship. Nevertheless, building on elements identified in AME B.C.’s “Aboriginal Engagement Guidebook; A Practical and Principled Approach for Mineral Exploration (2014)”, most exploration stage agreements will contain some or all of the following provisions related to:
- Communication processes;
- Sharing of information about the project, Indigenous interests and potential impacts;
- Principles of engagement between the parties;
- Employment, training and business opportunities associated with the mineral exploration activities;
- Identifying specific opportunities for First Nations to be engaged in early baseline data gathering such as water sampling or wildlife inventory research;
- Dispute resolution processes, which should be put in place at this stage prior to disputes arising;
- Capacity funding to assist the First Nation community to participate in engagement and consultation as part of the permitting process, with appropriate accounting and reporting requirements in relation to the use of that funding; and
- Commitments to negotiate later stage agreements such as socio-economic benefit agreements if the project proceeds to the mine development stage.
The contents of more advanced stage agreements, such as Socio-Economic Cooperation Agreements will, of course, vary depending on the nature of the project and the priorities of the First Nation(s) negotiating the agreement. It is also important to understand that there are differences in how First Nations structure their business and economic interests, and this could have an impact on the structure and nature of the negotiating process. While many First Nations have a government branch relating to the economy, some also have development corporations that report to a Board of Trustees. Others have a Trust and an economic development committee that report directly to Chief and Council. The economic development structures of First Nations are described in the web based application for this guide.
There have been many occasions where the mineral exploration industry and First Nations have reached respectful and beneficial relationships, and put in place unique agreements at various stages of exploration. In early discussions with a First Nation, it is useful to discuss whether agreements have been reached in the past and what are the “lessons learned”. In other words what has the experience shown regarding the values of the agreements and where have they not been helpful.