mca aboriginal lands and resource management forum negotiating equitable ib as

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IBA NEGOTIATIONS: EQUITABLE LEGAL CERTAINTY FOR ABORIGINAL PEOPLES?

Merle Alexander Kitasoo Xai’xais, Heiltsuk-TsimshianCo-Leader and Partner, First Nations Practice Group

January 31, 2012

Aboriginal Lands and

Resource Management Forum

Vancouver, BC

1. What do FNs want from IBAs?

2. How can FNs ensure equity?

3. TOP 5 Equity-Based Tips

4. Questions

5. Closing Remarks

What do FNs want from IBAs?

> Equitable role in the economy> Respect for our culture and TK> Environmental compliance that sets standards > Prosperous and sustained livelihood> Benefits that leave a legacy> Investment equal to extracted resources

> Fairness stands the test of time

HOW FNS ENSURE EQUITY?

> Cooperate among ourselves > Share information> Determine Crown’s role > Foster a resolution-innovative table> Exercise due diligence on Proponent> Leverage and deliver legal certainty

TOP FIVE

EQUITY-BASED TIPS

FOR IBA NEGOTIATIONS

DO TEMPLATE AGREEMENTS PROVIDE EQUITY?

> Yes – Hold the pen - it empowers

> Tailor template to reflect FN values> Build fairness in phased negotiation process> Create value in pre-approved wording> Customize your suite of templates> Exercise due diligence on Proponent> Share with other FNs

ARE NEGOTIATIONS WITH PREJUDICE?

> Yes

> Keep consultation records> Manage interactions with Proponent/Crown> Be aware of “First Nation agrees that this

Agreement fulfils the duty to consult and accommodate” language

> Think qualified or conditional support

CAN BENEFITS PROVIDE EQUITY?

> Yes

> Your TK study equal to baseline studies> Think transferable education and skills> Consider ownership of infrastructure> Create workable preferential bidding process> Establish committees that maintain PIC> Consider financial equity participation

CAN WE NEGOTIATE CONSENT?

> Yes – everything is negotiable

> Set your conditions and terms for consent> Ensure you are informed at all times> Avoid commitments against citizens’ freedoms> Do not consent at early phases of the Project> Implement committees to maintain consent> Ensure you can withdraw consent

CAN $ ACHIEVE EQUITY?

> Yes and no

> Avoid single solution – lump sum payment> Do not accept – revenue sharing fulfills all

accommodation> Consider all options.> Tie benefits to successful milestones> Exercise due diligence to maximize options> Be innovative and creative

QUESTIONS?

CLOSING REMARKS

> How do IBAs transform the law?

> Translate constitutional rights into dynamic and concrete benefits

> Revitalize rights to sustainable prosperity> Deliver certainty to the BC economy> Create legacies for their beneficiaries