For at least the past decade, accommodation agreements between First Nations and natural resource project proponents have become standard. While their terms are typically confidential, many people are aware that they feature project benefit sharing mechanisms such as revenue sharing, priority employment and contract opportunities for First Nations affected by a project. However, they also commonly feature a broad range of enhanced environmental protection measures. Because of their progressive and creative environmental terms, this body of private agreements constitutes a new level of environmental management beyond provincial and federal regulatory regimes.
Many accommodation agreements directly integrate indigenous ecological knowledge into day-to-day project management. Often this is achieved by conducting traditional knowledge studies at the outset of a project, which establish a baseline for protection of key environmental values and the sustainability of traditional activities such as hunting, fishing, trapping and plant harvesting. Many agreements also provide First Nation representatives with ongoing access to project sites and project information, facilitating their input into operational decisions and ensuring that projects do not cause impacts beyond those that are expected and permitted. Terms establishing First Nation environmental monitors for the life of a project are common as a means to reduce the environmental uncertainties of resource development.
Establishing forums for sharing both project information and indigenous ecological knowledge allow the parties to develop more effective environmental mitigation measures. Accommodation agreements may include an environmental management committee as a formal mechanism for First Nation participation in environmental decision making and a more holistic approach to environmental protection. A good agreement will also include tailored dispute resolution provisions. For example, some agreements provide for independent scientific studies of potential project impacts that may become the subject of concern or disagreement. Agreement terms may stipulate that the parties will abide by the recommendations of such studies within a reasonable cost range.
Other unique environmental provisions in accommodation agreements include those establishing that compliance with environmental regulations is a contractually enforceable term. This feature provides First Nations who have a significant stake in environmental protection with additional recourse beyond federal and provincial regulatory compliance regimes if project operators fail to meet legislated standards. In addition, some agreements contain special provisions for compensating First Nation members who are adversely impacted by unforeseen environmental impacts or accidents; for example, establishing a harvesting compensation board empowered to award damages to individual harvesters for lost hunting or trapping income due to project operations or accidents.
Many agreements contain terms that project operations will exceed regulatory standards to ensure that traditional ecological and cultural values are not compromised by development. Examples include enhanced water quality standards in sensitive areas, or special protections for plant and animal species of particular importance to a First Nation, such as medicinal plants that are not otherwise subject to regulation. In this way, accommodation agreements offer a more localized and refined layer of environmental management.
Environmental protection measures common to many accommodation agreements benefit not only First Nations whose rights and interests are affected by a project. They contribute to better environmental management, the protection of biodiversity and the sustainability of natural resource development for the benefit of all.