7. OTHER SUBSTANTIVE AND PROCEDURAL PROVISIONS

Any agreementAgreement: any explicit, signed document that is negotiated and includes mutual concessions or limitations placed on both sides. Examples are Negotiation AgreementsNegotiation Agreement: an early agreement in the mining process, likely to occur in the Exploration StageExploration Stage: the whole range of activity from searching for and developing mineralMineral: A naturally-occurring, homogeneous substance that has a definite chemical composition and (usually) a crystalline structure. deposits., which would outline the basis of the relationship between the Aboriginal group and the mining company and how the relationship will evolve if the mine moves forward. , Exploration Cooperation Benefit Agreements, Socio-Economic Participation Agreements. is only as good as its implementationImplementation: the carrying out or execution of an agreement, decision, or plan.. This section therefore should be thought through carefully.

Earlier agreements did not put much thought into implementation and evaluation. Now most SEPAs have detailed information about how implementation will occur and how the success of the agreement will be evaluated. Generally a SEPA includes information on an Implementation or Management Committee, a liaison officer, an agreement evaluation process. It may also include information on Aboriginal, treaty and constitutional rights, and obligations to meet the terms of any collective agreement.

Amendment and Renegotiation of the Agreement

SEPAs contain standard provisions about when and how the parties may choose to amend or renegotiate the agreement. This may be triggered by a variety of circumstances. For example, the project may expand, or inconsistencies may develop between the SEPA and regulatory processes.

Anticipation of Project Expansion and Other Projects or Activities

Some SEPAs address the possibility that the mine will expand or that the mining company will get involved in other projects in the same area. Provisions in this subsection explain how such an eventuality will benefit or impact the Aboriginal party.

Confidentiality and Release of Information

The SEPA may include provisions about the confidentiality of information. This information may concern the mining project itself, the terms of the SEPA, or Traditional KnowledgeTraditional Knowledge (TK): the knowledge, observations, and understandings about the natural environment, and about the relationships between living beings and their environment, that Aboriginal people have accumulated over many generations. that should remain confidential.

Implementation Committee

Implementation Committee members are generally representatives of the parties to the agreement. Sometimes outsiders to the agreement are included as well. This committee must meet regularly in order to catch issues as they arise. This may be the only committee that is struck in the agreement. If that is the case, its members will not only oversee implementation, but specific aspects within each section of the agreement.

The two SEPAs connected with the Voisey’s Bay Mine (*Case Study #4, p. Intro-39) set up joint oversight committees to guide implementation. Each Aboriginal community has its own committee. It meets quarterly to deal with any concerns that may have arisen. The committee may also choose to turn its attention to other matters that are newly important in the operation of the mine.

Annual Reporting on Agreement Implementation

Each year the company usually completes a formal report on key issues of the SEPA, such as employment, training, business expenditures etc.

Formal Evaluation of the Agreement

Independent consultants may be hired to interview stakeholders and formally evaluate the SEPA. Their report on the SEPA performance may act as a trigger for its renegotiation.

Dispute Resolution

Hopefully, the parties to the SEPA will have no disputes about the agreement. Just in case, though, it is highly recommended that the SEPA explain the steps both parties must follow if a serious disagreement arises between them. This “dispute resolution mechanism” usually specifies a first, second, and third authority that each must try to resolve the matter.

The Voisey’s Bay Mine SEPA (see *Case Study #4, p. Intro-39) has a very detailed section on dispute resolution. It contains a formal procedure for addressing disputes between the parties. The procedure has many steps, the most essential of which is a discussion by members of one of the joint oversight committees. If the issue cannot be resolved at this level it then rises to the level of the President of Nunatsiavut, the Grand Chief of the Innu Nation, and the President of Inco. Failing resolution at this level, the matter may have to be resolved in court. To date no disputes have gone further than a discussion between the presidents.

Enforceability and Remedies

Most SEPAs today are legally binding contracts. This subsection may contain details about how the agreement is to be enforced.

“Boilerplate” Contractual Provisions

This subsection lists standard provisions for contracts. Examples are the grounds for terminating the agreement, the notice required for termination, the law governing the agreement, and liability in case of default.