New legislation will affect Aboriginal IBAs

A Frankenstein federal “omnibus” bill includes new legislation requiring companies to report payments to First Nations governments. OKT partner Maggie Wente joined a number of critics in expressing concerns about the new federal bill in an interview with Lexpert Magazine.

The Extractive Sector Transparency Measures Act (ESTMA) was tabled on October 23 in Parliament as part of a giant omnibus bill called C-43. The bill will require disclosure of payments over $100,000 from oil, gas and mining companies to Aboriginal governments. Back when a draft of the bill was released for public comment last April, Maggie raised questions in a previous blog post about potential negative impacts on Aboriginal communities. Her concerns remain despite minor amendments to the proposed legislation.

First, Maggie argues that disclosure of revenue to aboriginal communities from extractive companies may lead to diminished support from the federal government.” “I think that there is a legitimate concern that having ‘own-source revenue’ of this nature would lead to a claim by a government that the funding that the government is providing to the First Nations should be diminished in light of that,” she said.

Second, payments from oil, gas and mining companies—called “Impact and Benefits Agreements” (IBAs)—are effectively compensation for violations of Aboriginal and Treaty rights. They are negotiated privately and intended to be confidential. It is not clear why these negotiated payments should not be kept confidential like compensation when private rights are violated.

Third, the Act purports to be fighting “corruption,” but First Nations citizens are already entitled to know the details of IBAs through their governments.

The ESTMA is buried about two thirds of the way through a 478-page omnibus bill which contains dozens of new legislative initiatives and modifications. The bloated bill is yet another reminder of the inappropriateness of passing so many consequential piece of legislation with so little debate.

The ESTMA includes a two year grace period for reporting of payments to Aboriginal communities. This grace period does nothing to address legitimate concerns of aboriginal communities. It only delays the impacts.