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Recent Developments in Government Policies. I. Yukon: Ross River Dena Council v. Yukon & Implications for Free Entry. Yukon Court of Appeal (2012)

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i yukon ross river dena council v yukon implications for free entry
I. Yukon: Ross River Dena Council v. Yukon & Implications for Free Entry
  • Yukon Court of Appeal (2012)
    • Duty to consult triggered as a result of both potential impact of “Class 1 Activities” on asserted aboriginal rights and title and potential impact of mere recording of mineral tenure on asserted aboriginal title
    • Reasoning is potentially problematic to right of free entry applicable in most Canadian jurisdictions
  • Leave to appeal to SCC denied
  • Yukon currently in the process of revising its mining legislation to reflect decision in Ross River
    • Influence of Ontario Mining Act amendments?
ii ontario mining act amendments
II. Ontario: Mining Act Amendments
  • Overview of Mining Act Amendments
    • Exploration plans and exploration permits
    • Consideration of “arrangements” between aboriginal groups and proponent
    • Third party dispute resolution process
  • Analysis in light of Ross River
    • Consultation on acquisition of tenure?
  • MNDM consultation policy on early exploration
iii newfoundland and labrador nl new aboriginal consultation policy
III. Newfoundland and Labrador (NL): new Aboriginal Consultation Policy
  • Published in April 2013
  • General framework for decisions associated with land and resource decisions that may adversely affect asserted and established Aboriginal and treaty rights
  • Proponents required to provide “reasonably necessary capacity-funding” and “any required financial accommodation”
  • “...any consultation support or capacity required by a consulted party will be the responsibility of the proponent”
  • “NL will not necessarily engage directly in Aboriginal consultation on proposed resources development” (p.5)
  • Proponents are expected to fully confirm to NL’s “benefits-related expectations” and “enter into dialogue with Aboriginal organizations to address project-specific opportunities, with a goal of achieving a positive, sustainable, mutually beneficial outcome.” (p.7)
iii newfoundland and labrador nl new aboriginal consultation policy1
III. Newfoundland and Labrador (NL): new Aboriginal Consultation Policy
  • Places, in some instances, full burden of consultation on proponents – e.g. NL won’t directly engage in consultation with Aboriginal groups
  • Mixes policy and law – e.g. benefits-related expectations
  • The only time “accommodation” is used is in respect of “economic accommodation”
  • Appears to be an attempt by NL to download constitutional obligations on to project proponents
  • Clear expectations of benefits agreements but no clear description of expectations on proponents
iv alberta aboriginal consultation levy act aboriginal consultation plan
IV. Alberta: Aboriginal Consultation Levy Act & Aboriginal Consultation Plan
  • Aboriginal Consultation Levy Act
    • Bill 22 – Royal Assent May 27, 2013, not yet in force.
    • Levy on industry proponents in order to assist First Nations with capacity funding for consultation
    • Regulations will prescribe details/amounts of levy, form of payment and conditions of payment
    • Ministry may require proponents to provide personal information, records and other documents, including confidential information and copies of agreements relating to consultation capacity and other benefits
iv alberta aboriginal consultation levy act new consultation plan
IV. Alberta: Aboriginal Consultation Levy Act & new Consultation Plan
  • Policy on Consultation with First Nations on Land and Natural Resource Management, 2013
    • released August 16, 2013
    • will replace existing consultation policy once new Alberta Aboriginal Consultation Office is established
    • Alberta Aboriginal Consultation Office will coordinate consultation process
    • Outlines obligations of Crown, First Nations and Proponents to participate
    • Corporate Guidelines will supplement the new policy
v canadian environmental assessment act 2012 national energy board
V. Canadian Environmental Assessment Act 2012 & National Energy Board
  • Notable changes to CEAA 2012 legislation
    • responsible authorities
    • designated projects
    • substitution/equivalency
    • timelines
    • public participation
  • NEB process and National Energy Board Act
  • New responsibilities for the NEB
    • Navigable waters
  • Hearings, review panels