Confidentiality clauses are one of the main challenges in negotiating and implementing association agreements. Confidentiality rules are contained in most IBAs and limit the ability of parties to publicly discuss IBA negotiations, sensitive information (such as financial data) or concerns about project development23. These provisions may be requested by industry representatives – to protect the legitimate interests of businesses – or by Aboriginal communities. 24 Aboriginal Communities expressed concern about the possibility of a reduction in public funds if the financial elements of an IBA were known. 25 The potential effects of confidentiality rules may include a lack of transparency in the use and distribution of IBA benefits between members and communities26, as well as limited opportunities to learn from others and develop capacity for IBA negotiations27. 28 In addition to media control, IIBA`s transparency in Nunavut has facilitated academic control. In 2018, Eric Werker completed a study on the economic indicators of Mary River IIBA, which assessed the overall share of benefits relative to estimated mine revenues, and compared them to another publicly available IBA in Ghana. At the time of this study, Werker was probably able to download the entire IIBA directly from the QIA website. Given the risk of being too self-referential, I would also say that the analysis of this document highlights the benefits of transparency. In various places, I have been able to cite specific provisions of the Nunavut IIBAs to critically assess their public importance.
Neither this document nor Werker`s analysis would have been possible if confidentiality had come into effect. Opening the door to academic control is a free use for municipalities, made possible by public transparency. We compare IBAs to two other important “government technologies”: open access and environmental impact studies. Unacceptableness can also be used to resurrect monstrous individual agreements, even in situations where there is relative parity in bargaining power. Under Canadian law, this application of the doctrine was limited to signing “limitation of liability” clauses that completely prevent the parties from taking legal action.