Issue of SEC disclosure rules applying to first nations still debated – by Shawn McCarthy (Globe and Mail – June 3, 2013)

Globe and Mail is Canada’s national newspaper with the second largest broadsheet circulation in the country. It has enormous influence on Canada’s political and business elite.

OTTAWA — Before opening its Meadowbank gold mine in Nunavut, Agnico Eagle Mines Ltd. concluded an impact-benefits agreement with the local Inuit regional business council and is now negotiating a second deal for its Meliadine project in the territory.

While the business association operates on behalf of the local population, the financial terms of the agreements are confidential despite Agnico Eagle’s desire to make them public.

Louise Grondin, the company’s senior vice-president for sustainability, said the company is keen to have the full agreement disclosed. “We want to have this thing public so people know what is going on, and where the money goes and how much money.”

Agnico Eagle is listed in the U.S. and, under Securities and Exchange Commission regulations, must disclose all payments to governments for its projects in Canada, Finland and Mexico. But there continues to be considerable debate over whether first nations, who claim the right to self-government, should be covered by the SEC rules.

Toronto lawyer John Olthuis – who has represented aboriginal communities in benefits negotiations – said the band council and their representatives should not be considered governments because as they have no power to tax or set royalties. The benefits deals are essentially commercial agreements, with stipulations about employment, local procurement and social investments, he said.

U.S. lawyer Joel May, of lawyer firm Jones Day, said the SEC did not explicitly include native American tribes or foreign aboriginal groups in its rules.

“Absent formal guidance from the SEC to the contrary, we expect many Canadian companies to take what we believe is a reasonable position – that payments to the first nations need not be disclosed under the SEC’s new resource extraction rules,” he said.

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