Agreement (IBA) funding provisions.169 In 2013, blockades by some community members managed to close down the ice-road for a significant period and led to De Beers securing a court injunction to have the blockade removed. The blockades were in relation to a range of issues including: IBA transparency and accountability and trust fund terms and conditions; contracting administration; forms of community engagement, secrecy, requirement for public community meetings; additional exploration agreements and the environmental assessment of a second open pit mine; employment issues and compensation for impacts on trap-lines. De Beers’ perception is that “the majority of the issues raised were unrelated to the IBA, representing a mix of individual issues and issues between the individuals and the First Nation” and that the Trust Fund administration and management is under Attawapiskat First Nation control.It notes that compensation for predicted loss of harvest caused by the current mining activities is included in the annual payments to the First Nation with distribution of this being up to the First Nation. It also points out that community members were aware of the agreement content as the “Attawapiskat First Nation and its negotiating team undertook a 12-month internal consultation” prior to the ratification vote in 2005. De Beers also note that its request to the regulators, in the context of a possible second pit, is for a broad comprehensive environmental assessment, rather than a narrowly scoped one. According to a De Beers’ representative, changes in community leadership, and demographic changes within the community, due to people moving back to the area from elsewhere, had led to these demands for a modified contract and a new agreement. The case therefore touches one of the practical issues around the operationalization of consent, namely how consent is maintained, when does it need to be re-sought and under what conditions it can be revoked? At the time the mine was being considered it was suggested that the impoverished socio-economic situation of the communities, and the need to strengthen its institutional capacity, were potentially incompatible with the pursuit of mining operations in their territories.170 De Beers on the other hand hold that Attawapiskat First Nation had its own experienced legal team and an independent experienced negotiation consultant advising it, and consequently had access to both expertise and knowledge before making any decisions. In 2011, Attawapiskat chief Theresa Spence drew national and international attention to the First Nation’s economic plight, in particular their housing situation. Former Ardoch Algonquin First Nation Chief Bob Lovelace has attributed blame for the communities’ socio-economic situation to the lack of First Nation control over their own natural resources, which prevent them from exploiting them with government interference and denies them the exercise of their right to self-determination.171 This raises the issue as to what the particular requirements may be in relation to informed consent processes in contexts such as these, in particular where it is indigenous peoples’ first exposure to mining operations. Gahcho Kue and Snap Lake projects: Between 2005 and 2007 De Beers signed agreements with the Tłı̨ icho Nation, the Yellowknives Dene, the Lutsel K’e and Kache Dene First Nations (LKDFN) and the North Slave Métis Alliance in relation to its underground Snap Lake project in Canadian Northwest Territories. These First Nations have a long history of engaging with mining companies and the company has not faced similar obstacles to its operation as those at the Victor mine. However, some of the First Nations have pointed out that the historical agreements would be considered inadequate by the communities’ current negotiating standards. De Beers is currently attempting to pursue another mining project, known as the Gahcho Kue project, in the territories of these First Nations. In their submission to the environmental impact assessment, the LKDFN have stated that they are withholding their consent to De Beer’s proposal until the “Snap Lake mine comes into compliance with all regulations and commitments”.172 Included in the LKDFN recommendation is that the project be postponed until “the Bathurst caribou herd population restores sustainable numbers” and until De Beers sit down with them and ask “how they can contribute to the long term viability of [their] community.”173 De Beers maintain that the Gahcho Kue project should be recommended for approval to the Minister by the Mackenzie Valley Environmental Impact Review Board because it “will result in significant and positive socio-economic benefits to the NWT and 64 Making Free, Prior and Informed Consent a Reality

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