II. A Gendered Analysis of Representation and Warranty Clauses
In order to better identify key research issues and priorities we examined a selection of IBA terms that have been made public, technical reports and regulatory reviews of IBA performance more generally, as well as the existing literature thathas taken on the impact of resource development on Indigenous women.35 In this chapter, we focus on the use of representations and warranties in I BAs as a way to examine what considerations could be taken up in a gender-based analysis. Guiding our thinking are questions about how women are empowered or disempowered by gender neutral language and what type of language or broad interpretations of terms would ensure IBAs provide women the opportunity to make their own choices, sclf-govern, and return to Indigenous traditions that in some communities are tied to the land.
The Role of Representations and Warranties in IBAs
Representation clauses are essential clauses in IBAs that typically outline the power and authority of each signatory as well as confirm that authorizing resolutions will be implemented by the government and company. As a general rule, a representations clause will often involve a statement that the signatories have the requisite authority to bind the government of the relevant Indigenous nation and set out the procedures that were followed to establish the requisite participation of community members, and can include a Band Council Resolution, a community vote, or a traditional procedure.36
An example of representations made by an Indigenous nation to a resource company include the following types of terms:
- • The Council of the Indigenous nation is the duly constituted council on behalf of the Indigenous nation under the Indian Act and under the Indigenous nation’s constitution;
- • That the signatory has good and sufficient power, authority and right to enter into and perform its obligations under this agreement;
- • That the agreement is, upon execution, a valid and legally binding obligation of the Indigenous nation, and
- • A Band Council Resolution approving the execution of this agreement will be delivered concurrently with the agreement.37
The representations clause can also consider if some Indigenous legal provisions should apply. Language to this effect is as follows:
• The Indigenous nation will warrant that it has taken all steps required by the Indigenous nation’s traditional law and procedures to authorize the agreement.
While the formal legal purpose of the terms is to confirm the binding effect of the agreement on the organizations that the signatories represent, the multiple ways that effect might be achieved indicates that this section is used primarily to validate the knowledge and participation of the community. As such, this is a key place in IBAs where questions about the participation of women in these validating processes as well as in negotiations themselves could be raised and addressed.
Women and Participation in IBAs
If IBAs represent and warrant capacity to bind a community, it seems relatively clear that the starting point of analysis is to identify the ways that Indigenous women are represented in relation to those processes that bind them to negotiated terms. Pragmatically, this involves identifying what roles women occupy in determining the terms of IBAs, adopting them, implementing them, as well as contesting them. However, given the wide variety of ways that women can engage with IBAs, and resource management more generally, there is a tendency to point to one or two examples of engagement without examining systemic barriers and thereby overlooking systemic means of addressing them.
This chapter contributes to an understanding of the choices facing Indigenous communities and industry in determining capacity by focussing on a central question; that of participation. Participation arises as a key variable in making representations and warranties about the capacity to sign an I BA in three distinct ways: (a) participation in the governmental bodies; (b) participation in I BA negotiation; and (c) consultations with Indigenous women, prior to and during implementation.