Recent Developments in Government Policies

1. Recent Developments in Government Policies

2. 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?

3. 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

4. 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)

5. 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

6. 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

7. 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

8. 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