Commentary: Goldcorp-Cree agreement sets a precedent

For the first time since the Agreement Respecting a New Relationship Between the Cree Nation and the Government of Quebec (the Peace of the Braves) was signed in 2002, a major collaboration agreement was concluded in February 2011 between a Cree First Nation and a mining corporation.

This agreement, entitled the Opinagow Collaboration Agreement (OCA), was the result of four and a half years of continuous negotiations between Goldcorp and the Cree Nation (the Grand Council of the Crees [Eeyou Istchee], the Cree Regional Authority and the Cree Nation of Wemindji). Issues were both substantial and delicate. The objective was the Éléonore project’s development in northern Quebec, which involves the construction of an underground gold mine situated within category III lands in the Cree traditional territory of Eeyou Istchee. The agreement clearly sets a precedent regarding the
respect of aboriginal rights, while also constituting a business agreement with a First Nation.

Several previous agreements – including the James Bay and Northern Quebec Agreement (JBNQA), and the Peace of the Braves – encourage and promote involvement of First Nations in the development of natural resources and the conclusion of agreements with promoters in connection therewith. Signed in 1975, the JBNQA sets out an environmental and social protection regime for aboriginals living in the territorial regions of James Bay and Nunavik. Furthermore, the Peace of the Braves contains various measures designed to promote the development of mineral resources, forestry and hydroelectric installations located on the territory covered, and establishes a number of cultural, social and governmental institutions for aboriginal communities. The OCA was subject to the rights, conditions and restrictions set forth in these agreements, and was developed in the same spirit of mutual trust and respect.

The purpose of the OCA is to establish a collaborative relationship regarding the construction and operations phases of the Éléonore project, while respecting Cree traditional activities and ensuring the
promotion of Cree economic and social development in a manner beneficial to all parties. Specifically, the OCA contains eight chapters: general provisions, training and employment, business opportunities, education awards and scholarships, social and cultural, environmental matters and closure, financial matters and final provisions. Also, it confirms the alignment of the parties’ interests in the economic success of the Éléonore project. On this issue, the agreement includes financial benefits through various payment mechanisms and participation in the future profitability of the mine. In addition, it evidences Goldcorp’s long-term commitment regarding sustainable development, the protection of the environment and the respect of Cree social and cultural practices.

The implementation of the OCA will be done through committees with equal Cree and Goldcorp representation. These committees will deal with three major areas: training and employment, business opportunities and environmental matters.

Before reaching a final agreement, some preliminary steps were completed. A letter of undertaking was established with the tallyman of the trapline concerned by the project. The purpose of this letter of undertaking was to recognize the area that requires consultation and coordination with the tallyman to allow for the balanced development of the Éléonore project, and the continuation of the Cree traditional activities.

Concurrently with the negotiation process, the Cree Nation developed its own mining policy, which is based on three pillars: promotion and support of mining activities; mining and sustainable practices; and transparency and collaboration. The guiding principle of the Cree Nation Mining Policy reads as follows: “The Cree Government will support and promote the development of mineral resources within the territory of Eeyou Istchee that provide long-term social and economic benefits for the Cree, and that address sustainable development within the larger context of natural resources management and the environment and social protection regime in the territory.”

A pre-development agreement was signed by the parties in order to support the exploration phase of the project and
establish collaborative mechanisms. The negotiation of preliminary agreements, while establishing the foundation of a definitive agreement, also created an excellent opportunity to develop and establish a relationship of trust among stakeholders in the project.

Throughout the exploration phase of the Éléonore project, Opinaca and the Cree parties worked together with constant support and cooperation, in order to obtain the required authorizations for the construction of a winter road, a temporary airstrip, an exploration shaft, an exploration ramp and a power line, to ensure full compliance with the social and environmental regime provided for under section 22 of the JBNQA. Promoting a common goal for Goldcorp and the Cree parties has been present since the exploration phase, and has continued throughout the development of the Éléonore project.

Building a relationship with the Cree was a long-term concept in the negotiators’ minds. At the early stages, a team memorandum was established between members of the discussion team, which described the values upon which they would build a relationship, and the rules related to the process. They prioritized the development of friendly and collaborative relationships. Every meeting started with an exchange about personal news and updates. The members took time to get to know each other in formal and informal ways. Frequent meetings were scheduled to ensure efficiency, and a climate of team spirit developed and allowed for open and frank discussions. Financial matters were discussed towards the end of the process.
In hindsight, this was the most sensible thing to do.

– The author is a Quebec City-based partner in the law firm Fasken Martineau and leader of its Quebec mining group. He has acted as lead outside counsel for Goldcorp and specializes in commercial and business law, specifically in mergers and acquisitions, and public and private financing in the mining and forestry industries. For more information visit www.fasken.com.