Impact Benefit Agreements and the Protection of Indigenous People's Rights: Any New Lessons from Canada?

• Author: Joseph Onele
• Position: LL.B, First Class Honours, University of Ibadan, Nigeria
• Pages: 27-40

[2017] 16 COLR 27

27"

IMPACT BENEFIT AGREEMENTS AND THE PROTECTION OF

INDIGENOUS PEOPLES RIGHTS: ANY NEW LESSONS FROM

CANADA?

Joseph Onele*

A INTRODUCTION

There seems to be a general consensus that developing natural resources in a manner that

imposes significant costs and impacts on the indigenous people,1 while the benefits are enjoyed

elsewhere is no longer acceptable.2 Putting this more succinctly, Fidler and Hitch while stating

that meaningful consultation with indigenous peoples is becoming a routine, note that the recent

increase in Impact and Benefit Agreements (IBAs) is a clear evidence that resource extraction

practices which fail to accommodate the interest of indigenous people are no longer acceptable.3

It appears, therefore, that the era where the indigenous people are left to battle with the impacts

that resource extraction activities have on their environment, economic and social life, with little

or no benefit accruing to them, is coming to an end.4 This perhaps explains, for instance, why the

emergence of IBAs in the Canadian mining sector has been welcome as a positive innovation.5

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* Joseph Onele (LL.B, First Class Honours, University of Ibadan, Nigeria); Commonwealth Shared Scholar,

Department for International Development (DfID), United Kingdom; Barrister and Solicitor of the Supreme Court of

Nigeria; Legal Practitioner at Olaniwun Ajayi LP, Lagos, Nigeria; ojoseph990@gmail.com; joxy004@yahoo.com;

<https://ng.linkedin.com/in/josephonele> .

The author is very grateful to Dr Mark Igiehon of the Aberdeen University Centre for Energy Law who also doubles

as the President, Oil & Minerals for Good Global Forum, for his invaluable contribution to this article. The author

will also like to express his gratitude to the reviewers for the very helpful comments.

1 Jason Prno, Ben Bradshaw and Dianne Lapierre, ‘Impact and Benefit Agreements: Are they working?’ (CIM

2010).

<http://www.impactandbenefit.com/UserFiles/Servers/Server_625664/File/IBA%20PDF/CIM%202010%20Paper%

20-%20Prno,%20Bradshaw%20and%20Lapierre.pdf> accessed 9 March 2017; see also Ciaran O’ Faircheallaigh,

‘Extractive and Indigenous peoples: A changing dynamic?’ (2013) 30 Journal of Rural Studies 20

<http://dx.doi.org/10.1016/j.jrurstud.2012.11.003> accessed 9 March 2017.

2 Harvey Sands and Ross Castleton, ‘Focus: Business Realities Impact and Benefit Agreement Negotiations

(Strategy and Practice)’ (2015) (Richter First Nation & Aboriginal Advisory Services, AFOA Canada National

Conference Winnipeg, MB) <https://www.afoa.ca/afoadocs/L2/2015Conf/Presentations/V2Richter.pdf> accessed 9

March 2017.

3 Courtney Fidler and Michael Hitch, ‘Impact and Benefit Agreements: A Contentious Issue for Environmental and

Aboriginal Justice’ (2007) 35(2) Environments Journal 45, 49.

4 Prno and others (n 1); Irene Sosa and Karyn Keenan, ‘Impact Benefit Agreements Between Aboriginal

Communities and Mining Companies: Their Use in Canada’ (Report submitted to the Environmental Mining

Council of British Columbia and the Canadian Environmental Law Association, October 2001)