HOMEWORK #6: ASSEMBLE A NEGOTIATING TEAM

Almost all Aboriginal communities have Aboriginal Development Corporations (ADCs). An ADC is often a key organization in the negotiation of SEPAs. The ADC’s executive director or chair will likely be on the negotiating team. Aboriginal governments and ADCs must be clear with each other about their respective roles and responsibilities during negotiations. For example, it may be the ADC’s job to discuss financial or employment benefits. But the Aboriginal government will likely have the greater say when negotiating access to traditional lands.

In addition, it is critical that an Aboriginal community’s negotiators be capable, representative, and accountable. They must also have at hand a support team of technical specialists.

Capable & Representative

The negotiating team you select must be knowledgeable, representative of the whole community, and capable of addressing key issues. Yet it must also be able to draw on appropriate technical and legal support. Ask yourself these questions:

• Can our negotiating team speak all the different languages that will be spoken at the table? Can they translate complex technical information to the community in a way that everyone can understand?
• Does our negotiation team represent the full scope of our community? Have we considered youth and Elder representation? 
• Is each negotiator a strong and visible member of the community, or an outsider?

Lawyers will be key in drawing up the 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 Stage, 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. once negotiations have been completed. Keep them available for consultation as needed. But it is best that they stay out of the negotiating room. Aboriginal communities inexperienced in negotiations with businesses are often tempted to let authority slide into the hands of technical advisors, especially lawyers. This does no favour to their credibility in the eyes of the company, nor does it build community capacity. Even in the event that a negotiator must be hired, make sure the negotiation experience builds the skills and authority of the Aboriginal members of the negotiating team.

In 1995 Tr’ondëk Hwëch’in (TH) and Loki Gold entered into negotiations to develop an agreement in regards to the Brewery Creek Mine. (See *Case Study #3, p. Intro-30.) Early in the process they recognized that a team of experienced individuals would be required to assist in the negotiations. A negotiating team was composed of three outside consultants and four First Nation representatives.

The three consultants had expertise in mining issues and negotiating Aboriginal and private mining Joint VenturesJoint Venture: commonly, a business to which two or more parties contribute the essential land, capitalCapital: cash, property, equipment, services, and contracts or leases., and services, in return for a share in its ownership and control. (Note: the Joint Venture is very strictly defined under Canadian law.). They were well-versed in mine development. They also had experience with the legal issues that Aboriginal business and mining involve. TH provided a staff member from the economic development corporation, two TH members, and a representative from the First Nation’s land claims department.

One person was to co-ordinate the consultants, meetings, seminars, legal experts, and other events during the negotiations. The two TH representatives had to ensure that the wishes of the community were presented at the negotiating table. They also took information back to the community about the progress of the negotiations. The land claims representative had to make sure that the negotiations covered TH’s concerns about the environment and land claims.

Accountable

The negotiation team is accountable to the community as a whole. This is a lot of pressure, as well as a lot of work. Make sure that the team members are aware of this and are prepared to take on this workload.

It is best if the negotiation team has a formal mandate from the Aboriginal government. It should be clear how the team will report the progress of negotiations to leadership and to other community members. If nothing else, these steps will protect both the team and the Aboriginal government from unpleasant surprises.

Chief and Council have to know what the negotiators need from them during the negotiations. That may include their advice on changes to the negotiation strategy or other problems that arise.

One smart way to ensure effective communication is to put a councillor on the negotiating team. You might ask a councillor to act as an observer, for example. S/he can then verify that the rest of the team does what it said it would do, and does not make a deal on the basis of some other criteria. By refraining from negotiating, the councillor can also watch the behaviour of all the participants closely. The councillor can then report his or her insights to the rest of the team when negotiations recess.

(Note that the accountability of the company’s negotiators is also important. If they are not the decision makers, or if they do not have the decision makers’ confidence, they may be the wrong people to talk to. Your homework should enable you to judge the authority of the negotiators across the table from you.)

The Support Team

At certain points during their discussions negotiators will require the assistance of specialists of one kind or another.

The advice of the community’s education director or co ordinator of training programs, for example, may be very important to have. Likewise, depending on the deal, other specialists might come in handy. Environmental impact analysts, industrial or technical experts (like geologists), and financial analysts are examples. All this can cost a lot of money.

Whenever negotiating agreements with mining companies Aboriginal people will need to bring in technical help. In the case of the *Voisey’s Bay Mine, p. Intro-39, the Innu Nation needed help with supervision of the negotiation and with the review of the project. The Innu needed help hiring technical experts and consulting with the communities. The Innu also needed advice about monitoringMonitoring: the act of observing something and often keeping a record of it. People monitor mining activities or impactsImpacts: the effect or impression of one thing on another such as the impact of a mining project on the life of an Aboriginal community. in order to determine their effect on the land, resources, and communities. the environmental procedures so that the impact on the environment was the least possible.

The Lutsel K’e Dene learned from their experience with the Ekati Mine, when they had little or no technical help. (See *Case Study #5: Keno Hill Silver District, p. Intro-45.) When negotiating Diavik and Snap Lake, the leaders knew they could demand the time and help necessary to assess the information at hand. As a result, the later agreements were more favourable to the Lutsel K’e Dene than the Ekati IBA. The leaders also had improved their understanding of mining operations and the companies’ intentions.³

Imagine negotiations in which the company asserts that it can commit so much money to training. The Aboriginal negotiators think it may not be enough. Negotiations start to bog down. The Aboriginal negotiators then turn to their “back bench.” They ask the training co ordinator for a list of the programs and procedures on which they have based their position on training needs. This data may give them 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. they need to get the company’s representatives to reconsider their training budget.

Dealing with Complexity

A lawyer familiar with Aboriginal businesses is an important resource for negotiators. S/he should be easily accessible when issues arise that threaten to confuse the negotiating team.

Negotiations can become extremely complex. One or two heads may no longer suffice to keep track of all the data and proposals being exchanged. It is common to reach a point in the process when someone at the table says, “Look folks, why don't we move to the next point. We're going to have some of our people run some numbers for us on this matter. We then can return to it later.” This approach makes for smoother negotiations. It also lets the people on the other side of table know that you are organized.

When agreements are very complex, it may be necessary to hire a negotiator. Negotiating a share in the ownership of a mine, for example, is not a simple matter. It involves brokerage of millions of dollars. An experienced negotiator can be critical to winning benefits in such a large and complex deal.

In this case, hire someone who is experienced in business. Preferably, s/he will be a professional from the industry and not a lawyer. This person should understand what makes a deal and how to manage the dynamics of negotiations. Above all, hire somebody in whose expertise and loyalty you have confidence.