THE ART OF NEGOTIATING AGREEMENTS THAT WORK

All these laws and regulations strongly encourage mining companies to consult with First Nations and to enter into agreements with them. All have been achieved through enormous effort. Many have only been achieved after bitter battles.

These achievements have honed the negotiation skills of a generation of Aboriginal leaders. (Indeed, some leaders would say that the constant demands on them to negotiate are a modern-day curse. It is hard for them to find time for anything else.) These achievements have also shaped the attitudes of Aboriginal leaders about the right way to negotiate on behalf of their communities.

Some of these skills and attitudes are useful in the world of business. Negotiations with businesses like mining companies must always affirm Aboriginal interests. About that there is no question. Indeed, during some business negotiations, there may be little choice but to force the other party to recognize your rights and power.

But very seldom will that be the case. Negotiations with businesses truly succeed only when all signatoriesSignatory: any person or organization who has signed as a signatory to a document or agreement. to an agreement leave the table satisfied that their interests have been reasonably satisfied. Each party comes to the table with leverage. Each party will use its leverage to try and realize benefits and limit risks.

Mining companies have a high need for certainty, for example. The ups and downs in the prices of metals and other minerals on world markets are trouble enough when trying to raise money for a multimillion dollar investment. The added risk that Aboriginal communities might challenge a company’s right to explore or mine would be discouraging to investors. That gives the communities leverage.

Mining companies have plenty of leverage too, of course. They have great expertise in minerals, engineering, business management, and global markets. They too have interests that an agreement must accommodate. When community and company fully appreciate the leverage that they each bring to a mining opportunity, it becomes possible to reach an agreement that realizes benefits for everyone – an agreement that works.

There are many books written about negotiations, conflict resolution, and the development of agreements that work. They describe the values, attitudes, and behaviours that make agreements easier to reach and to keep in business, unions, politics, and in our personal lives. The same values, attitudes, and behaviours also apply in the negotiation of SEPAs and JVs.

A Commitment to Win Win

There are four ways to reach agreements: the Win-Lose approach, the Lose-Win approach, the Lose-Lose approach, and the Win-Win approach. Only the Win-Win approach can achieve lasting benefits for all concerned.

Win-Lose

In Win-Lose, one party forces the other to give up. Agreements obtained via this route can yield short term benefits to the winning party. Then a power struggle usually follows. At best, the losing party will have little commitment to fulfilling the agreement. At worst, the loser will sabotage it. Ultimately, nobody really wins.

Right in the middle of summer, the Government of Canada announced that BHP Billiton and the Lutsel K’e Dene had only 60 days to conclude an IBA for the Ekati mine. (See *Case Study #1, NWT Diamond Mines, p. Intro-10.) That was enough time for the company to get ready. It was not nearly enough for the community.³ The result was an agreement that failed to reflect the needs and wants of community members.⁴ They learned from this experience, however. Next time they would demand the time to do the necessary homework before negotiations began. In negotiations with Rio Tinto over the Diavik mine, the Lutsel K’e Dene negotiating team took its time to consult with the community, to get clear on its desires, and to gather technical information. The community was happier with the details of this agreement. Because everybody gained from it, the agreement is stronger.

Lose-Win

In Lose-Win, one party sacrifices its interests in order to gain agreement. This approach also yields poor results over the long run. Like a marriage in which one spouse constantly gives in to the other, one party to the relationship is fearful, and the other disrespectful.

Lose-Lose

In the Lose-Lose approach, each party takes satisfaction in merely doing the other damage, and “suffering less” than the other does. This is more like warfare than negotiation. Any agreement that the parties happen to reach is merely a ceasefire. Everyone leaves the room hurt and eager for revenge.

In its negotiation with Loki Gold over the Brewery Creek mine (see *Case Study #3, p. Intro-30), Tr’ondëk Hwëch’in originally wanted to get a share of the mine’s ownership. Loki Gold felt that was asking too much. Tr’ondëk Hwëch’in became frustrated because Loki Gold did not appear interested in a working relationship with the community. Loki Gold refused to provide the information that Tr’ondëk Hwëch’in needed to do due diligenceDue Diligence: a financial and technical investigation to determine whether an investment is sound. Each party to a business agreement uses Due Diligence to ascertain the actual quantity and quality of the assets which the others claim they can contribute. on the company. It was a Lose-Lose approach to negotiation, and talks finally broke down. They only resumed when, upon further investigation, Tr’ondëk Hwëch’in realized that a share in ownership was not in its best interest.

Win-Win

Agreements that work have results that each party experience as a win. As simple as this may sound, it is not easy to commit yourself to reach agreements in which both parties win. Much of our way of life runs on the assumption that somebody has to lose, if anyone is to win. Our movies, sports, and politics all affirm that the people who really matter and succeed are those who defeat others.

Nonetheless, Win-Win situations are all around us. A loving family, a productive workplace, or a profitable relationship between two businesses are examples. They all are signs of a sincere commitment on everyone's part to their own well being and to the well-being of their companions.

To negotiate an agreement with a mining company that will last and help build your community's capacity, a commitment to Win Win is essential.

Know What You Want & Believe in It

To get what you want, you have to know what you want. You have to have a clear idea of where you are going and what you need to get there. What’s more, having clarified what you want, believe in it. People often come to the table with positions they don't really believe in. As you approach the negotiating table, be aware of your own sense of integrity and value. If you have honestly worked out your interests and believe in them, your confidence at the table and your credibility will be much greater. It will also help your negotiating team stay on track.

Commit to Listen at least 51% of the Time

To create a Win Win agreement, you have to understand what the other party wants. To gain that understanding you have to listen actively to everything the other party says (and does not say), in both words and body language. As the saying goes, we each have two ears and just one mouth; maybe we’re meant to listen twice as much as we talk. If we don’t listen actively to the other party, we become prisoners of our own assumptions about them. The agreements we happen to reach will be short-lived, because they are not fully based on reality.

Acknowledge the Other Party's Humanity and Interests

Establish a rapport and build a relationship with the party with whom you wish to agree. Make sure they know that you view them as human beings, and not just as representatives of some big corporation.

Put yourself in their shoes. Ask yourself: What would be a “win” for them in this negotiation? Moreover, make sure they know you want the answer to that question. It may be hard to acknowledge the other party's interest in a deal. After all, your mandate is to obtain maximum benefits for your community. But it is easier to reach a deal when the others can see that you are concerned with generating benefits that are important to them as well.

Lastly, sell the other party on the benefits that they stand to gain from your co-operation and participation. This can have a powerful effect in negotiations if you have really understood the motives and needs of the party you are negotiating with. You need a negotiating strategy that stays focused on what you want, but shows the people across the table how the satisfaction of your interests can help them get what they want.

Understand the Culture of the Negotiating Table

Every negotiation has a life of its own. Activity ebbs and flows. Sometimes there will be long periods when little seems to get accomplished. Other times, you will be “on a roll.” You will achieve agreement on a lot of issues very quickly.

It is important is that your negotiating team is comfortable with this culture of the negotiation table. Be sure your negotiators are empowered to speak up when they do not understand what is happening. Make sure they can bring in technical expertise to answer their questions as early as possible.

These are the values, attitudes, and behaviours that are fundamental to successful negotiation.