Recent developments in government policies
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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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Recent Developments in Government Policies

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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)

    • 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

  • 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

  • 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 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

  • 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

  • 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

  • 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


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