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Employment and contracting provisions in Impact and Benefit Agreements are special programs under Ontario’s Human Rights Code

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Overview

Impact and Benefit Agreements (IBAs) are becoming an industry standard for resource development projects that are located on or impact Aboriginal Peoples’ traditional lands and rights.[1] The agreements often contain employment and contracting provisions that give priority for training, hiring and contracting to Aboriginal Peoples.

When Aboriginal governments choose to enter into IBAs, the Ontario Human Rights Commission (OHRC) supports developing and implementing preferential employment and contracting provisions in IBAs, to address historical disadvantage and promote substantive equality for Aboriginal Peoples in Ontario.

It is the OHRC’s position that the preferential employment and contracting provisions in IBAs are consistent with “special programs” under section 14 of Ontario’s Human Rights Code (the Code).

What are Impact and Benefit Agreements?

Impact Benefit Agreements (IBAs) are negotiated private contracts between one or more Aboriginal governments and a resource extraction company. IBAs typically provide commitments and benefits by the resource extractor, which includes mitigating or eliminating negative impacts on Aboriginal rights, and employment, training and contracting benefits. Mining and resource development sectors are increasingly seeing IBAs as an important way to share benefits with Aboriginal Peoples whose rights would be impacted by the proposed resource development project and to mitigate impacts on Aboriginal rights.[2]

What are the employment and contracting provisions in IBAs?

The preferential employment provisions typically found in IBAs generally support the employment of Aboriginal Peoples in affected Aboriginal communities. The provisions typically contain a wide range of commitments on behalf of the resource extraction company. Examples of common provisions include:[3]

Employment:

  • A human resources strategy to build a pool of skilled workers from the affected Aboriginal Peoples in the region. This can include commitments to develop comprehensive training programs to ensure that local Aboriginal workers have the training, skills and qualifications to apply for jobs that become available.
  • Goals for a certain percentage of the workforce to be comprised of Aboriginal employees. This can also include goals specifically for hiring Aboriginal women.
  • Hiring preference for people living in communities affected by the resource development project. Second opportunity to access jobs is provided first to affected Aboriginal Peoples living in adjacent communities or the region, and then Aboriginal Peoples across the province.
  • Requirement that all contractors and subcontractors agree to the preferential hiring process.
  • Training for all employees on the culture and history of the local Aboriginal Peoples.
  • Designation of an Aboriginal shop steward or project liaison to assist all Aboriginal employees and address any workplace concerns.
  • Availability of different types of cultural leaves for Aboriginal employees. This can include hunting leaves, or leaves for cultural events.
  • Distribution of collective agreements in all local Aboriginal language(s), and providing all workplace health and safety signs in local languages.
  • Availability of an on-site interpreter for employees whose first language is neither English nor French.
  • Employment Assistance programs that offer culturally relevant support for Aboriginal employees.

Contracting:

  • Where possible, contracting and sub-contracting related to the resource development project is to be given to qualified businesses that are owned at least in part by Aboriginal persons or governments.
  • Requirements that all businesses contracted employ Aboriginal employees.

What are special programs?

The Code allows for programs designed to help people who experience hardship, economic disadvantage, inequality or discrimination. These types of programs are known as “special programs” under section 14 of the Code.

Section 14 serves to address disadvantage and discrimination in all its forms and promote substantive equality. “Substantive equality” means understanding and meeting the needs of disadvantaged persons or groups. It takes into account discriminatory barriers in their many forms, not all of which are obvious or intended. People from historically disadvantaged groups (for example, Aboriginal Peoples) often do not have access to the same opportunities as others. Special programs help level the playing field.

Section 14 also ensures that special programs, designed to help a disadvantaged group, cannot be challenged by people who do not face the same disadvantage.[4]

Developing and putting in place special programs is a way that organizations can address systemic discrimination and promote substantive equality.

Employment and contracting provisions in IBAs are special programs under the Code

Sometimes there may be resistance to special programs based on the perception that they simply change who is being discriminated against. For example, in the case of IBAs, sometimes non-Aboriginal people believe they are unfairly disadvantaged in competing for job opportunities because of the preferential employment provisions for Aboriginal Peoples. In some cases, non-Aboriginal individuals have even filed human rights complaints, claiming discrimination in employment.[5]

The purpose of section 14, outlined above, is a clear response to such a situation. Special programs, designed to help a disadvantaged group, cannot be legally challenged by people who do not face the same disadvantage.[6] It is the OHRC’s position that Section 14 of the Code would be a complete defence to such an allegation of discrimination.[7]

By their very nature, the preferential employment and contracting provisions commonly found in IBAs are “designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity.” This is entirely consistent with the purpose and aims of section 14 of the Code.

Employment and contracting provisions in IBAs promote substantive equality for Aboriginal Peoples

The preferential employment and contracting provisions in IBAs are an important tool to support employment of Aboriginal Peoples. It can be an effective way to ensure that resource extraction projects provide direct benefits to affected Aboriginal communities. 

Employment and contracting provisions in IBAs can offer a meaningful response to the historical inequality, discrimination and disadvantage that Aboriginal Peoples have and continue to face. The OHRC supports developing and implementing these provisions as part of IBAs, where Aboriginal governments choose to enter into them, to promote substantive equality for Aboriginal Peoples in Ontario.


[1] See the IBA Research Network (2012). Accessed at: www.impactandbenefit.com/.See also the Ontario’s Ministry of Aboriginal Affairs website at: www.aboriginalaffairs.gov.on.ca/english/economy/overview.as

[2] Ibid.

[3] Note that this list is not meant to be exhaustive or comprehensive of all types of employment and contracing provisions that may be part of an IBA. For more detailed information on employment and contracting provisions, see Ginger Gibson and Ciaran O’Faircheallaigh (2011), IBA Community Toolkit: Negotiation and implementation of impact and benefit agreements, published by the Walter and Duncan Gordon Foundation. Accessed at www.ibacommunitytoolkit.ca.

[4] See Carter v. Elementary Teachers Federation of Ontario (2011) HRTO 1604 at 24 (CanLII).

[5] Newfoundland amended its Human Rights Act to allow preferences to be given to Aborignal Peoples under Impact and Benefits Agreements. Complaints from non-Aboriginal persons seeking employment, in cases where preferences have been given to Aboriginal Peoples as part of IBAs, have since been dismissed.

[6] See Carter v. Elementary Teachers Federation of Ontario (2011) HRTO 1604 at 24 (CanLII).

[7] Section 14 of the Code would be a complete defence to an allegation of discrimination when the challenge to the program comes from someone whose needs do not fall within the purpose or underlying rationale of the program.