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Impact and Benefit Agreements as Private Environmental Governance Schemes: Assessing Legitimacy

Generously funded by:

Law Foundation of Ontario

Social Sciences and Humanities Research Council of Canada (SSHRC)

Meet the research team:

Neil Craik: School of Environment, Enterprise and Development (SEED); University of Waterloo

Dan McCarthy, School of Environment, Enterprise and Development (SEED)/Environment and Resource Studies; University of Waterloo

Project description:

Natural resource extraction in Ontario’s northern First Nation communities has resulted in the conclusion of numerous impact and benefit agreements (IBAs) between resource companies and First Nations. IBAs are the principle mechanisms by which First Nation communities participate in the economic benefits that arise from the extraction activities, through employment, training, community improvement and the sharing of royalties.  IBAs also play a critical role in the ongoing management of the environmental and social impacts that often accompany resource development. In this latter regard, some IBAs have taken on a regulatory character, with the IBAs setting out the commitments by resource companies to monitor, report and address environmental impacts in close consultation with the affected First Nation communities. We characterize the regulatory functions of IBAs as creating a private environmental governance scheme, in the sense that IBAs involve the creation of some institutional frameworks and they distribute authority, but do not directly involve the government.

Conceptualizing IBAs as private environmental governance schemes raise important issues respecting how the regulatory goals are identified (the regulatory ends); the nature of the mechanisms employed to achieve those goals (the regulatory structure); and whether those goals are actually achieved (regulatory effectiveness). The object of this project is to provide preliminary responses to the first two of these issues (regulatory ends and structure) and to consider their relationship to regulatory effectiveness.  Given the increasing reliance on IBAs to perform regulatory functions, and the substantial resources that are currently being dedicated to these efforts by resource companies and First Nations, generating an improved understanding of the environmental governance role of IBAs is a critical first step in improving the ability of these agreements to satisfy both private and public ends.