HOMEWORK #2: WHAT BENEFITS DO YOU BRING TO THE NEGOTIATING TABLE

To design an effective negotiation strategy, you have to be clear about the benefits you bring to the negotiating table. These benefits are said to be either contributive or attributive in value.

Contributive value can be seen and counted, and is readily expressed in terms of dollars. Such benefits are concrete, like equipment, money, land and buildings. Attributive value is not necessarily visible and countable, but is very important to the SEPA or JV under consideration. It is the value that people recognize and “attribute” to things like access to the market or to connections to suppliers, management capacity, patents, licensesLicenses: documents that must be obtained in order to apply for or carry out certain activities., and influence.

Aboriginal communities that have settled their land claims have some important benefits to bring to the negotiating table. A First Nation with Settlement A Lands owns the sub-surface rightsSub-Surface Rights: rights to resources that lie beneath the earth’s surface. to those lands. If a mine is proposed on those lands, these rights are an important contributive benefitContributive Benefit: assets which are easily seen, counted, and appraised in terms of dollars (e.g. equipment, land, or money). the First Nation can bring to the negotiating table. On its Settlement B Lands, a First Nation owns the surface rights only. Even so, by its control over access to any mine proposed on those lands, a First Nation possesses an important attributive benefitAttributive Benefit: assets whose importance cannot be readily expressed in terms of dollars (e.g., experience, connections, or specialized knowledge)..

In Yukon, a First Nation can realize attributive benefits from non-settlement lands in its traditional territory as well. Mining companies there are required to submit Project Proposals for environmental review and to apply for water licenses. In both instances, the co-operation of First Nations with traditional lands that will be affected by the project is valuable to a mining company. This co-operation, while not necessarily decisive to a mining proposal, is an attributive benefit that Yukon First Nations can bring to the negotiating table. (See Module 3, “YESAA,” p 3-9.)

In 1975, the James Bay and Northern Québec Agreement awarded lands to a number of Aboriginal peoples in northern Québec, including the Inuit of Nunavik. But the Raglan Property that Falconbridge wanted to develop lay outside those lands. (See *Case Study #2: Raglan Mine, p Intro-21.) So the Inuit communities, represented by Makivik Corporation, had no contributive benefits to bring to the negotiation table. Their bargaining position looked weak.

Then Makivik realized two things. First, Falconbridge needed an Environmental Assessment Certificate. If the Inuit were opposed, the company’s application for the certificate would likely get rejected. Second, Falconbridge needed to ship oreOre: the naturally-occurring material (rock) from which minerals are extracted through breaking down and processing. from Raglan south through Hudson Bay Strait during the summer. The Inuit had a land claim pending to those shores and waters. If and when they won the claim, they could block those shipments. These two attributive benefits gave Makivik the bargaining power it needed to negotiate what became the first Impact and Benefits Agreement (IBA) in Canada between a mining company and the local Aboriginal people.

The “Big Stick”

Not to be discounted is the leverageLeverage: strategic advantage or the power to act effectively. In negotiation, leverage is a measure of which side, at any given moment, has a greater ability to influence the other side. that can come from the threat to protest and block mine development. This “big stick” should never be used lightly. Yet it can be powerful when used well. Mining companies must raise money in the financial markets. The threat of active resistance can create real problems raising cash. It can even affect the prices of a mining company’s shares. Carefully applied, the possibility of resistance can encourage mining companies to be more co-operative - so long as a win-win agreement is the final goal.

In 2007, NaCho Nyäk Dun suspended negotiations with Alexco Resources over the Bellekeno East Deposit. (See *Case Study #5: Keno Hill Silver District, p. Intro-45.) The Yukon government was not seriously consulting a self-governing First Nation about the sale of land within its traditional territory. When negotiations were suspended, investors took notice. The value of Alexco’s shares on the stock market quickly fell from $5.50 to $3.50 each. This prompted Alexco to urge that negotiations resume. It supported NaCho Nyäk Dun’s demand that the government consult it appropriately.

Those are the benefits that an Aboriginal community can bring to the table.