Lexpert Magazine quotes Toronto lawyer Tracy Pratt in an article about recent precedents that give Aboriginal communities leverage to resolve land claims. Tracy discusses the increasing use of impact benefits agreements (IBA’s) between companies and native communities.
“In cases where First Nations lack capacity to develop a project or create a supply or service business on their own, we’re starting to see the use of joint ventures, limited partnerships or other corporate structures.” She says these arrangements may provide equity interest, a source of revenue or training, employment and capacity building.
“It’s all about dialogue and building the relationship,” she says. “It’s safe to say that, at this stage, no mine will be constructed in Ontario without IBAs with adversely affected Aboriginal communities. The more difficult question for a proponent – given the increasing challenge of overlapping traditional territories and conflicting claims – is with which Aboriginal community to negotiate an IBA. It’s a fundamental issue facing developers and First Nations in Ontario and elsewhere.”
“Industry clearly needs to engage and consult with Aboriginal communities and drive deals forward,” Treacy says. But “it’s imperative that government be engaged. If the government does not consult and engage at the appropriate time, then the entire deal will be subject to challenge by the Aboriginal community on the basis that the government did not fulfill its consultation obligations — and the entire project will be at peril.” She observes that various First Nations have decried the tendency of governments to allow their constitutional duty to consult to be fulfilled by companies and regulators, and that she expects the issue to go all the way to the Supreme Court of Canada “soon.”