THE NEGOTIATION

NND and Alexco started negotiating early in 2007, before the sale of Keno Hill Silver District was finalized. Since then, they have come to three agreements: a Memorandum of UnderstandingMemorandum of Understanding: a document that records an understanding between a community and a mining or exploration companyExploration Company: a company whose principal activity is that of exploration.. The MOUMemorandum of Understanding: a document that records an understanding between a community and a mining or exploration company. The MOU defines principles for working together for mutual benefit. defines principles for working together for mutual benefit. (MOU), a Negotiation AgreementNegotiation 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. , and an Exploration Cooperation Benefits AgreementExploration Cooperation Benefits Agreement: an agreement struck between an Aboriginal group and a mining company which outlines benefits that each party may realize during the Exploration Stage. Benefits for the mining company may include the ability to explore for minerals with the support of the Aboriginal community. Benefits for the Aboriginal community may be jobs, financial compensationCompensation: something (such as money) given or received as payment or reparation (as for a service or loss or injury)., business opportunities, etc. (CBA).

They signed the MOU in March 2007. It outlined how they would cooperate and support any future development in the Keno Hill Silver District, as well as its eventual closure and reclamationClosure and Reclamation Stage: restoration of disturbed and/or mined land to its original contour, use, or condition.. It also explained how any agreement would be monitored, that is, what the parties to the agreement would do to ensure everyone kept the commitments they made.

Then, in August 2007, NND suspended negotiations. NND claimed that the federal and provincial governments were not consulting the First Nation properly about the sale of Keno Hill to Alexco. According to a recent decision of the Supreme Court of the Yukon (Little Salmon/Carmacks First Nation vs Government of Yukon), the CrownCrown: the Crown refers to the sovereign or to the power and authority of the monarchy. In Canada, the powers and authority of the sovereign have been delegated to the Governor General of Canada. could not approve the transfer of rights within the traditional territories of self-governing First Nations without "government to government dialogue" first. NND settled its land claim in 1993 and is self-governing.

Simon Mervyn, Chief of NND said that the Yukon government had only carried out "courtesy consultations" with the First Nation concerning the sale. The government, he said, “paid lip service to our rights” while cooperating eagerly with Alexco. “Our First Nations people have used these lands for generations,” he said. “We intend to be fully involved in the decision making process regarding their reclamation and redevelopment."²

In response, Alexco stated that it understood and sympathized with NND grievances. Alexco said it would help the government and NND discuss the Keno Hill sale meaningfully.

In the meantime, market traders on the stock exchange reacted to the stall in negotiations. The company's stocks plummeted in value from about $5.50 per share to about $3.50.

Seeing the impact of NND’s actions, Alexco hurried to get negotiations going again. By September 2007, Alexco and NND had concluded a Negotiation Agreement.³ It outlined two further types of agreement that Alexco and the NND would negotiate. One, an Exploration Cooperation Benefits Agreement, would concern activities already underway in Keno Hill, like exploration and protection of the environment from the old mines. The second, a Comprehensive Cooperation Benefits AgreementComprehensive Cooperation Benefits Agreement: this may be the name of an agreement that is essentially the same as a Socio-Economic Participation AgreementSocio-Economic Participation Agreements (SEPAs): private, confidential contracts between Aboriginal communities and resource developers, like mining companies. SEPAs specify how the communities that will be affected by the development of a resource will also benefit from that development. Many SEPAs include terms about the employment and training of Aboriginal people, compensation payments, protection of the environment, and profit-sharing. SEPAs are often called Impact Benefits Agreements (IBAs) and Cooperation Benefit Agreements (CBAs), and other names. The Aboriginal Mining Guide calls them all SEPAs.., would be negotiated if Alexco decided to develop the Bellekeno mine. Under the Negotiation Agreement, Alexco provides NND with money to help cover its negotiation expenses.
 

Building Relationships

From the beginning of the Exploration CBA negotiations, NND wanted three main things: protection for the land and environment; employment opportunities for its citizens; and business opportunities for local Aboriginal entrepreneurs. It also wanted to make sure the Exploration CBA was a sound basis for the Comprehensive CBA, if Bellekeno were to go into production.

As Alexco and NND negotiated, they realized that there could be many more “Bellekenos” in the future. It seemed wise to write a process that these other negotiations could also follow. This Cooperative Engagement Process outlines principles to guide the actions of mining companies that have mineralMineral: A naturally-occurring, homogeneous substance that has a definite chemical composition and (usually) a crystalline structure. interests within NND traditional territory. This document also outlines how NND will manage any activities within its traditional territory.

NND’s business arm is NaCho Nyäk Dun Development CorporationCorporation: the most common form of business organization. It pursues set objectives and is empowered with legal rights usually only reserved for individuals, such as to sue and be sued, own property, hire employees, or loan and borrow money.. One of its staff members, Tom Lie, was spokesperson for NND in the negotiations. He emphasized to Alexco that NND had settled a land claim. Alexco was therefore negotiating with a government and must behave accordingly. Alexco’s senior CEO should get to know the NND Chief and Council personally so that the discussion would truly proceed among leaders.

Repeatedly both NND and Alexco have noted how much the negotiation process is about building relationships and trustTrust: a legal arrangement in which an individual (the trustor) gives fiduciary control of property to a person or institution (the trustee) for the benefit of beneficiaries., not just business deals. First and foremost, mining companies want certainty about the terms under which a mine may go forward. First and foremost, First Nations want benefits from the mine.

In May 2008 Alexco and NND signed the Exploration CBA.