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
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Making Free, Prior and Informed Consent a Reality