Davis LLP - Aboriginal Law Blog

New Mining Act Regulations for Aboriginal Consultation Proposed

Wed, 14 Mar 2012 12:56:00 PDT

Recently, the Ministry of Northern Development and Mines (the “Ministry”) posted proposed regulations pursuant to section 176 of the Mining Act on Ontario’s Environmental Registry (the “EBR”). The proposed regulations attempt to clarify Aboriginal Consultation requirements for early exploration activities with a graduated system of consultation which will reflect the type of activity that is taking place on the land. The Proposals have been posted for a 50 day public review and comment period which will continue until May 01, 2012. The proposed regulations are: <ul> <li> An Amendment to the General Regulation (O. Reg 45/11) (the “General Regulation”) (EBR 011-5733)</li> <li> An Amendment to the Assessment Regulation (O. Reg 6/96) (the “Assessment Regulation”) (EBR 011-5786)</li> <li> An Amendment to Mine Development and Closure under Part VII of the Mining Act (O. Reg 240/00) (the “Mine Closure Regulation”) (EBR 011-5787)</li> <li> A new regulation titled Exploration Plans and Permits (the “Exploration Regulation”) (EBR 011-5733)</li> </ul> The Exploration Regulation The Exploration Regulation proposes a graduated system of Aboriginal consultation requirements for early exploration mining activities. The graduated system is based on two classes of early exploration activities requirements: Exploration Plans and Exploration Permits. Both classes of requirements require the exponent of the exploration activities to provide information about all Aboriginal consultation that has taken place or is planned to take place. For Exploration Plans this would be noted in a Consultation Report and this would be contained in the Application for an Exploration Permit. Exploration Plans involve lower impact activities and can be approved within 30 days of being submitted to the Ministry. An Exploration Permit involves low to moderate impact activities and can be approved within 31-50 days of filing the application but not before. Exploration Permits would be posted on the EBR and have a provision for alternative dispute resolution (“ADR”) provision between Aboriginal group and the exponent.   The Mine Closure Regulation The Mine Closure Regulation proposes that Aboriginal consultation is to be carried out before a certified Closure Plan is submitted. It also includes a provision for dispute resolution between a proponent of a closure plan and an Aboriginal community where there are concerns about impacts on Aboriginal or Treaty rights. The General Regulation The General Regulation proposes to add criteria for Sites of Aboriginal Cultural Significance which can be withdrawn from staking. The proposed criteria are: association with an Aboriginal community for social, cultural, ceremonial or sacred reasons, a fixed location on a map and documentation and support by the community Assessment Regulation The proposed Assessment Regulation would make Aboriginal consultation costs eligible for assessment work credits but only when actual geoscience assessment work is submitted.

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Ontario Superior Court Grants Injunction Against Mining Company for Failing to Consult

Fri, 06 Jan 2012 16:45:00 PST

On January 3, 2012, Ontario Superior Court Justice Carole Brown J. granted an injunction to the Wahgoshig First Nation (the "WFN") restraining a junior minor from engaging in all mining exploration activities for 120 days on Treaty 9 lands upon finding that the company failed to consult the WFN prior to conducting its exploratory drilling. See, <a href="http://canlii.ca/t/fphj5">Wahgoshig </a><a href="http://canlii.ca/t/fphj5">First Nation v. Her Majesty the Queen in Right of Ontario et al</a><a href="http://canlii.ca/t/fphj5">., 2011 ONSC 7708</a>. The action was brought by the WFN following efforts to engage the company, Solid Gold Resources Corp., shortly after the WFN first discovered the drilling activity on Treaty 9 lands in the Spring of 2011. By that time the company had staked its claim (between November 2007 through 2010); raised money through flow-through shares; and it began drilling in March 2011. While the company was advised by the Crown, first in 2009 to contact the First Nation to consult regarding its intended mineral exploration and then on November 8, 2011, the company did not consult. Upon finding that the company had a duty to consult WFN prior to commencing its exploratory drilling, Madame Justice Brown J. held at para. 58 that the company willfully disregarded its duty (not even meeting the industry standard for responsible exploration) by choosing not to consult until after its flow-through share monies for 2011 had been exhausted. Their failure created a significant possibility of harm to WFN's Aboriginal and Treaty rights which could not be compensated by damages: (at para. 60) " I am satisfied based on all of the evidence that, without meaningful consultation and accommodation regarding the exploratory mining operations of Solid Gold, involving bona fide dialogue and information sharing between WFN and Solid Gold, facilitated by the presence of the Crown, there is a significant possibility of harm to WFN’s Aboriginal and Treaty rights. There has to date been no demonstrated respect for those recognized rights." Despite the company's argument that it would suffer economic harms and the Crown's submission that an injunction would cause greater tension, Justice Brown J. found the balance of convenience in favour of WFN on the basis that it was in the public's interest to grant the injunction in the circumstances of this case (where the rights to consultation and accommodation are ignored) to ensure constitutionally protected Aboriginal and treaty rights are honoured and respected (at paras. 70 to 72): " I have taken into account the cases cited by both WFN and Solid Gold, including Lax Kw’alaams and Platinex. I am mindful of the importance of reconciliation and the derivative concepts of consultation and accommodation as they have developed in Canadian jurisprudence. I am further mindful of the Crown’s position that an injunction would not foster relations, but would exacerbate tensions. While a facilitation of the duty to consult is preferable, it is not always possible. I am also mindful of WFN’s position that to refuse to enjoin Solid Gold from its drilling, in the circumstances of this case, will send a message that Aboriginal and treaty rights, including the rights to consultation and accommodation can be ignored by exploration companies, rendering the First Nations constitutionally–recognized rights meaningless. This would not be in the public interest. It is in the public interest to ensure that the Constitution is honoured and respected."

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First Nations Transparency Act Passes 2nd Reading

Fri, 04 Mar 2011 12:56:00 PST

<a href="http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=4669703&Language=e&Mode=1&File=24" target="_blank">Bill C-575</a>, a private member's bill brought forward by Conservative MP Kelly Brock to create the First Nations Transparency Act passed second reading on March 2nd in the House of Commons and will be referred to the Standing Committee on Aboriginal Affairs and Northern Development for review. 151 MP's voted for the Bill, and 128 against the Bill. The purpose of the Act as set out in section 3 is "to enhance the financial accountability and transparency of First Nations by ensuring the public disclosure of the remuneration paid by a first nation, directly or indirectly, to its chief and councillors. A schedule of remuneration to a first nation's financial statements is mandated by subsection 5(2), and subsection 5(3) requires the Schedule to be made publicly available within 120 days after March 31 in each calendar year. MP Kelly Brock is said to have brought the Bill forward in response to concerns expressed to her by community members about the lack of transparency surrounding salaries of First Nations politicians. At a Special Chiefs Assembly on December 14, 2010 in Gatineau, through <a href="http://www.afn.ca/index.php/en/resolutions" target="_blank">Resolution no. 50/2010</a> First Nations re-affirmed their support for accountability and to "lead by example and demonstrate to other orders of government processes for accountability" but did not support Bill C-575. The Bill is referred to as "unnecessary and heavy handed" in the Resolution - unnecessary as "First Nations are already required to report on matters covered in the bill through contribution agreements with the federal government"; and heavy handed in that "enforcement provisions enable costly and unnecessary legal proceedings wherein the Minister is authorized to apply to superior court for enforcement which will serve to only further exasperate an already adversarial relationship." In commenting on the Resolution, <a href="http://www.afn.ca/index.php/en" target="_blank"> Assembly of First Nations</a> National Chief Shawn Atleo is quoted as commenting that "I applaud the Chiefs who demonstrated that, despite unfounded and alarmist attacks by our critics, First Nations fully believe in accountability and transparency and are dealing with this issue head-on."

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QuÃ©bec's Plan Nord: Nunavik Representatives meet in Kuujjuaq with QuÃ©bec Government Officials

Fri, 04 Mar 2011 12:09:00 PST

On March 3rd, representatives from Nunavik met with Québec Government officials in Kuujjuaq to discuss the province's ambitious northern development plan, the Plan Nord. On hand for the province were Nathalie Normandeau, Québec's Deputy Premier, Minister of Natural Resources and Wildlife and Minister responsible for the Plan Nord, Mr. Geoffrey Kelley, Minister responsible for Aboriginal Affairs and Mr. Pierre Corbeil, Minister responsible for the Abitibi-Témiscamingue and Nord-du-Québec regions. Among the topics covered at the Kuujjuaq meeting, government officials notably announced the creation of a Québec-Nunavik discussion table made up of representatives of the Kativik Regional Government, Makivik Corporation and the Québec Government. The discussion table's mandate will be to reflect on and implement solutions to several issues facing the Inuit Nation, therefore improving the daily lives of Nunavik residents. Quebec's Plan Nord, which is to be officially launched in the next few weeks, is a major sustainable development project in the fields of energy, mining, forestry, biofoods, tourism, transportation and wildlife development, with an emphasis on environmental protection and the preservation of biodiversity. Its sponsors have expressed that it is to be the fruit of combined efforts of task forces from various sectors, the Partners' Discussion Table and the Aboriginal Partners' Discussion Table. Commenting on the Plan Nord, Minister Normandeau explained that "[...] the Plan Nord is a priority for our government. What makes this collective project so unique is the process we have chosen. We want to point out in particular the participation of four Aboriginal nations, including the Inuit nation. Together, we are working to define the development priorities for Northern Québec for the next 25 years. It's an inspiring challenge!" Emphasizing the key role First Nations play in the development of the province's vast northern territories, Minister Corbeil added "From the very beginning, we have worked with all of the communities directly affected by the Plan Nord. Today it is important to remember that the development of Northern Québec will proceed with these communities, for them and for all Quebecers, with full respect for their culture and their identity," More information on the Plan Nord can be found <a href="http://www.plannord.gouv.qc.ca/english/index.asp" target="_blank">here</a>.

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Supreme Court of Canada Confirms Consultation and Compensation Requirements for Past (Historical) Infringements of Aboriginal Rights

Thu, 28 Oct 2010 11:11:00 PDT

The Supreme Court of Canada recently released its decision in <link http://scc.lexum.umontreal.ca/en/2010/2010scc43/2010scc43.pdf>Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 </link>in which the respondents, the Carrier Sekani Tribal Council, argued that the duty to consult on a decision by BC Hydro to purchase electricity under a new electricity purchase agreement may be triggered by a failure to consult on the larger, existing electricity development to which the agreement was to apply. At issue was whether a fresh duty to consult could arise with respect to the Crown decision before the Commission. The court disagreed with Carrier Sekani's position and overturned the Court of Appeals decision. Instead, it held that the duty to consult on the agreement was not triggered by a failure to consult on the existing development because the existing development would not adversely affect the claims or rights at issue. Citing the rule in Haida Nation, the Court confirmed that the duty to consult arises only "when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it." The Court held that "to trigger a fresh duty of consultation...a contemplated Crown action must put current claims and rights in jeopardy." As the Carrier Sekani did not show that a failure to consult on the larger, existing electricity development could put their current claims and rights in jeopardy, the Court found that there was no fresh duty to consult on the existing development. Though a failure to consult would constitute a breach, the Court held that without any further impact to the resource (a continuing breach) an historical infringement alone would not adversely impact Aboriginal rights, giving rise to a duty to consult. Moreover, the Court held that the focus of consultation is forward looking, centering on how the resource is to be developed to prevent irreversible harm to existing Aboriginal interests. Therefore, consultation is not possible "where the resource has long since been altered and the present government conduct or decision does not have any further impact on the resource." In those circumstances, the Court held that "the issue is not consultation, but negotiation about compensation for its alteration without having properly consulted in the past." What this means is that a failure to consult on historical or past infringements which are part of a proposed new development but do not constitute a continuing breach nor have the potential to adversely impact current Aboriginal rights, will not trigger fresh consultation. The appropriate remedy for the breach is to negotiate compensation or bring a claim for damages. The issue of an historical and continuing breach was not before the Commission, given its limited mandate, and therefore, it was not before the Supreme Court in this case. However, the Court stated "that is not to say that there is no remedy for past and continuing breaches, including previous failures to consult. As noted in Haida Nation, a breach of a duty to consult may be remedied in various ways, including awarding damages."

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BC Supreme Court Finds a Failure to Meaningfully Consult and Accommodate Warrants a Stay of a Mines Act Permit and Suspension of a Licence to Cut

Tue, 23 Mar 2010 14:31:00 PDT

The BC Supreme Court stayed the effect of First Coal Corporation's Mines Act Permit Amendment for Advanced Exploration and suspended its forestry Licence to Cut last Friday on finding that the provincial Crown failed to meaningfully consult and properly accommodate the petitioner's, West Moberly First Nations, traditional right to hunt caribou in its treaty territory (see <a href="http://www.courts.gov.bc.ca/jdb-txt/SC/10/03/2010BCSC0359.htm" target="_blank">West Moberly First Nations v. British Columbia (Chief Inspector of Mines)</a>, 2010 BCSC 359). The remedy follows the jurisdiction of the court "when considering a constitutional right...to stay the effect of the impugned decisions for a determined period and to give directions as to the accommodation which should be put in place within that time," (per Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation (2006), 272 D.L.R. (4th) 727) The West Moberly First Nations filed a petition for judicial review in Supreme Court seeking to quash three statutory decisions permitting (1) an amendment to an existing Mines Act permit to obtain a bulk sample of coal; (2) an amendment to a second Mines Act permit to conduct drilling as part of its advanced exploration program on the same lands; and, (3) a Licence to Cut. The First Nation claimed that the statutory decision makers failed to consult adequately and meaningfully and, failed to reasonably accommodate their hunting rights guaranteed by Treaty No. 8. At issue was a population of caribou in the area of the proponent's operations, which has been red-listed as threatened (near extinction) under the federal <a href="http://laws.justice.gc.ca/PDF/Statute/S/S-15.3.pdf" target="_blank">Species At Risk Act</a>. Also, the First Nation claimed that the District Manager for the Ministry of Forests and Range improperly fettered his discretion in permitting the Licence to Cut. The First Nation led evidence that while they regularly communicated with various Crown officials regarding their hunting rights, the Crown was unresponsive or responded with "standard form referral letters." Also, they provided evidence that other employees of the Crown raised concerns about the status of the threatened herd, but those were largely ignored. The Crown and the proponent denied the petitioner's claims and submitted that deep consultation had occured and that the First Nation's concerns were accommodated by: reducing the proponent's Bulk Sampling program; implenting the proponent's mitigation and monitoring plan; closing an access road; and, by adopting a less destructive method of mining (the ADDCAR system). However, Justice Williamson rejected these assertions as most of the accommodation put in place did not directly respond to the First Nation's concerns. Justice Williamson found that while the Crown did consult, consultation was not meaningful and proper accommodation did not occur on the bases that: the Crown was extremely slow consulting on its inital assessment of the potential adverse affects of proponent's activities on the First Nation's treaty rights; the "standard form referral letters" did not address the real concerns of the First Nations regarding the threatened herd; and, the Crown failed to consider the First Nation's report on the danger to the herd and its relationship to the First Nations protected treaty right. At paragraph 53 " I conclude that a balancing of the treaty rights of Native peoples with the rights of the public generally, including the development of resources for the benefit of the community as a whole, is not achieved if caribou herds in the affected territories are extirpated."And, at paragraph 55, "The honour of the Crown is not satisfied if the Crown delegates its responsibilities to officials who respond to First Nations' concerns by saying the necessary assessment of proposed "taking up" of areas subject to treaty rights is beyond the scope of their authority." Also, Justice Williamson found that the "Crown's failure to put in place an active plan for the protection and rehabilitation of the Burnt Pine herd is a failure to accommodate reasonably." Citing the Supreme Court of Canada's decision in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 he further found that "a meaningful right to hunt means a right to hunt in "its" (here West Moberly's) traditional territories...It is not an accomodation to say "hunt elsewhere"." On the second issue, Justice Williamson found that the Minister of Forests did not fetter its discretion. Rather, he found that the Minister has the discretion to determine whether to approve a licence to cut under the Forest Act where the applicant already holds an exploration permit: "It is apparent upon a reading of the above subsections that the object of this particular piece of legislation is to ensure that those who hold permits for the purpose of exploring for and developing a coal mine are entitled to remove timber subject to conditions set out in the occupant's licence to cut." The parties have 90 days from the date of the decision to consult and put in place an active plan for the protection and augmentation of the Burnt Pine herd that takes into account the view of the West Moberly First Nations.

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No Aboriginal Right for Lax Kw'alaams Indian Band to Commercial Fishery says BC Court of Appeal

Thu, 07 Jan 2010 11:46:00 PST

The BC Court of Appeal released its <a href="http://www.courts.gov.bc.ca/jdb-txt/CA/09/05/2009BCCA0593cor1.htm" target="_blank">decision on December 23rd on Lax Kwa'aams' appeal</a> from the Supreme Court's decision that it did not have a commercial right to fish all species within their "Claimed Territory." Unlike other Aboriginal fishing cases, this case arises not from an alleged regulatory offence, but in an action brought by Lax Kw'alaams for declarations that it has aboriginal rights to harvest all species of Fisheries Resources and to sell them on a commercial scale. At trial, Lax Kw'alaams claimed that each of the Allied Tsimshian Tribes, was a "distinctive Aboriginal society engaged in a sophisticated economy based predominantly on harvesting, managing, processing, consuming and trading all species of fish, shellfish and aquatic plants...that were available to the Tribes from time to time within their Tribal Territories." It claimed that wealth creation in Coast Tshimshian society depended on trade and that Fisheries Resources were a necessary trade item. Finally, it asserted Aboriginal rights to "harvest, manage and sell on a commercial scale Fisheries Resources and Fish Products...for the purpose of sustaining their communities, accumulating and generating wealth, and maintaining their economy." The trial judge found that while the Coast Tsimshians traded in prestige goods, including eulachon grease, trade in other fish and related products had been incidental, low volume, foods for social and ceremonial purposes; and was not, "equivalent to a modern right to fish commercially all species in their Claimed Territories." In the result, their claims were dismissed. It severed its title claim in these proceedings. The appeal was framed for the most part as issues of law turning on the characterization of the right being sought and on the trial judge's assessment of the relevant "practices" of the Coast Tsimshian in relationship to their "way of life" prior to European contact. The Court of Appeal held that the while the trial judge may have mis-described the right in part, as not limited to a species of a specific resource, her delineation of the right as tied to a particular practice - trade in "prestige" goods such as eulachon grease - was not in error. Further it found that while it would have been erroneous for the trial judge to deny Lax Kw'alaams claim solely on the ground that it did not occupy or use the Nass River fisheries exclusively, it found no basis to interfere with her findings that "the Coast Tsimshian did not carry on any significant trade in fish and fish products, except eulachon grease, that could be said to be integral to their distinctive society and that could be said to be the precursor of a modern commercial fishery." It also found no errors in law or exercise in discretion on the trail judge's treatment of lesser/included rights, separate claims to harvest Fish Resources for FSC purposes, application of the principled approach in catagorizing trading-based rights and alleged breaches by the Crown.

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First Nations Certainty of Land Title Act Introduced to Help First Nations Develop Commercial Real Estate on Reserves

Fri, 18 Dec 2009 11:32:00 PST

On December 10, 2009, the Government of Canada introduced the First Nations Certainty of Land Title Act (the "Act") to amend the First Nations Commercial and Industrial Development Act, which was developed in consulation with five First Nations: the Squamish Nation in British Columbia; the Fort McKay First Nation and Tsuu T'ina Nation in Alberta; the Carry the Kettle First Nation in Saskatchewan; and, the Fort William First Nation in Ontario. The First Nations Certainty of Land Title Act would permit the registration of on-reserve commercial real estate developments in a system that replicates the provincial land titles or registry system. This would help make the value of on-reserve properties, including housing, stores, offices, and other buildings, comparable to equivalent properties off reserve land. The Act is optional legislation triggered only at the request of a First Nation.

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Nisga'a Nation Passes Legislation to Establish Private Property Rights

Fri, 20 Nov 2009 13:11:00 PST

The <a href="http://www.nisgaalisims.ca/?q=welcome" target="_blank">Nisga'a Nation</a> has passed a historic law allowing Nisga'a citizens to own their own property. It is the first time in Canada that an aboriginal group has approved legislation to allow for private property rights. This was possible because under the 2000 Nisga'a Final Agreement, the Nisga'a gained certain self-government rights and freedom from Indian Act regulation. The Indian Act prevents Indian Band members from having fee simple title to their homes located on reserve land and from mortgaging or granting security over their residential property. All reserve land property is owned by the Federal Government. The <a href="http://www.nisgaalisims.ca/files/nlg/Nisga%27a%20Landholding%20Transition%20Act%20%28October%202009%29.pdf" target="_blank">Nisga'a Landholding Transition Act</a> gives Nisga'a citizens the opportunity to own their residential property. A Nisga'a citizen who obtains fee simple title to their residential home under the Act will be able to mortgage their property as security for a loan, or to transfer, bequeath, lease or sell their property, to any person. However, the property will always remain Nisga'a lands and be subject to Nisga'a laws. "This is a significant step toward true self government. It is a process for increasing economic prosperity for our people," said Nelson Leeson, president of the Nisga'a Nation, in a statement, on the Nisga'a Lisims government website. The Nisga'a Nation is home to about 6,400 Nisga'a citizens.

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BC Hydro Releases Q&A on First Nations Consulation with Respect to Power Calls

Thu, 19 Nov 2009 07:42:00 PST

On November 18, 2009 BC Hydro released <a href="http://www.bchydro.com/planning_regulatory/acquiring_power/first_nations_consultation.html" target="_blank">Questions and Answers (Q&A) on its website regarding BC Hydro's role with respect to First Nations consultation</a>. The Q&A stems from uncertainty in the nature and scope of consultation required as a result of BC Court of Appeal decisions in <a href="http://www.llbc.leg.bc.ca/public/PubDocs/bcdocs/454543/2009BCCA0067.htm" target="_blank">Carrier Sekani Tribal Council v. British Columbia Utilities Commission, (2009 BCCA 67)</a> and <a href="http://www.courts.gov.bc.ca/jdb-txt/CA/09/00/2009BCCA0068.htm" target="_blank">Kwikwetlem First Nation v. British Columbia Utilities Commission (2009 BCCA 68)</a>. The Q&A is directed to Independent Power Producers (IPPs) to "help in understanding BC Hydro's role regarding First Nations consultation for current and future power acquisition activities." In the Q&A, BC Hydro describes a shift in assessing IPPs consultations with First Nations, from a risk assessment standpoint in evaluating IPPs proposals (ie. will consultations affect securing of land tenure), to adequacy of consultations prior to submissions of Electricity Purchase Agreements (EPA) to the BCUC under section 71 of the Utilities Commission Act. One question begging to be answered from this is: how will this affect IPPs in the Clean Power Call, the Bioenergy Call, or future power calls? For the current <a href="http://www.bchydro.com/planning_regulatory/acquiring_power/clean_power_call.html" target="_blank">Clean Power Call</a>, BC Hydro's response is that "further information or action may be required from or by those proponents to enable BC Hydro to complete that assessment." For the <a href="http://www.bchydro.com/planning_regulatory/acquiring_power/bioenergy_call_for_power.html" target="_blank">Bioenergy Call Phase II</a>, since the call is in its early stages, BC Hydro intends to incorporate new requirements with respect to First Nations consultation into call documents and timelines, and will update the website accordingly. For the <a href="http://www.bchydro.com/planning_regulatory/acquiring_power/standing_offer_program.html" target="_blank">Standing Offer Program</a> (ongoing acquisition process for projects up to 10 megawatts), this program requires proponents to apply with permits already in place, but BC Hydro notes that it will still assess the adequacy of consultation before offering an EPA to an applicant. For future power calls, it appears as though BC Hydro will build in this new assessment approach into each call. When assessing the adequacy of consultation, BC Hydro will "seek to identify what, if any, other agencies have already assessed the adequacy of consultation", and this evidence may satisfy their requirements, or they may require "additional evidence to support an IPP proposal". The factors BC Hydro will consider when assessing First Nations consultation may include: <ul> <li> Information on how the IPP determined which First Nations to consult.</li> <li> Information on the potential degree of impact from a project on aboriginal rights and title, and information on how this assessment was reached.</li> <li> Information on the level of consultation and potential avoidance, mitigation or accommodation required for each impact and how this was, or will, be undertaken by the IPP as evidenced by consultation reports, logs, impact benefit agreements, letters of support, correspondence and any other material submitted demonstrating consultation.</li> </ul> What is clear from this Q&A is that the BC Hydro has recognized that the ground rules with respect to First Nations consultation have changed as a result of the Carrier Sekani and Kwikwetlem cases and they are attempting to respond to this in a way that addresses this issue with respect to current power calls and future power calls, to provide some level of clarity for IPP proponents, First Nations and other interested stakeholders.

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BC Supreme Court recognizes Aboriginal Right for Nuu-chah-nulth Nations Bands to Fish and Sell Fish Commercially

Tue, 03 Nov 2009 15:09:00 PST

Today, in <a href="http://www.courts.gov.bc.ca/jdb-txt/SC/09/14/2009BCSC1494.htm" target="_blank">Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494</a>, Madam Justice Garson of the BC Supreme Court has ruled that the plaintiffs in the action (<a href="http://www.ehattesaht.com/" target="_blank">the Ehattesaht</a>, <a href="http://www.yuquot.ca/" target="_blank">the Mowachaht/Muchalaht</a>, <a href="http://en.wikipedia.org/wiki/Hesquiaht_First_Nation" target="_blank">the Hesquiaht</a>, <a href="http://ahousaht.org/" target="_blank">the Ahousaht</a>, and <a href="http://www.tla-o-qui-aht.org" target="_blank">the Tla-o-qui-aht</a> - five <a href="http://www.nuuchahnulth.org/" target="_blank">Nuu-chah-nulth Nations</a> aboriginal bands whose territories are located on the west coast of Vancouver Island) have the aboriginal right to fish any species of fish within their respective traditional territories (to a seaward boundary extending nine miles) and to sell fish commercially. Justice Garson found that these rights stem from ancestral practices, which translate into broader modern entitlements to fish and to sell fish, beyond the small-scale sale of fish in commercial markets, however, limited. The plaintiffs had asserted an aboriginal right to commercially fish all species of fish in their traditional territory and aboriginal title to a portion of the seabed. They claimed that the fisheries regulatory regime unjustifiably infringed their aboriginal rights and title because it failed to recognize and accommodate their aboriginal rights and title. Justice Garson did not consider the aboriginal title claim. Justice Garson declined to quantify limits on the scope of the right to sale, instead commenting that while it does encompass a right to sell fish in the commercial marketplace, it "does not extend to a modern industrial fishery or to unrestricted righs of commercial scale" and that "like other rights, such a right may be subject to infringement or restriction by government where such infringement is justified." Such limits, she found, are more appropriately addressed at the infringement and justification stages of the analysis as part of the reconciliation process (citing Newbury J.A. comments in Cheslatta Carrier Nation v. British Columbia, 2000 BCCA 539, 80 B.C.L.R. (3d) 212 on the rule against courts exercising jurisdiction on such matters as follows "As Cory, J. stated in R. v. Nikal [1996] 1 S.C.R. 1013 ...[t]he government must ultimately be able to determine and direct the way in which these rights should interact. Absolute freedom in the exercise of even a Charter or constitutionally guaranteed aboriginal right has never been accepted, nor was it intended." Justice Garson went on to find that the plaintiffs established that the <a href="http://laws.justice.gc.ca/en/F-14" target="_blank">Fisheries Act</a>, its regulations and policies, prima facie infringes their aboriginal rights, with the exception of their rights to harvest clams and to fish for food, social or ceremonial purposes. However, unlike other fishing rights cases, she found that "there is no single or isolated regulatory provision in issue in these proceedings. Rather, it is the "cumulative effect of Canada's fishing regime that I have found restricts Nuu-chah-nulth with respect to their ability to fish and their methods of fishing, including location, time, gear and species." She declined however to rule on Canada's justification defence and chose not to make any declaration of unjustified infringement. Instead, she granted the parties two years to consult and negotiate a regulatory regime for Nuu-chah-nulth that recognizes their aboriginal rights - or some other manner in which the plaintiffs' aboriginal rights to fish and to sell fish can be accommodated and exercised - without jeopardizing Canada's legislative objectives and societal interests in regulating the fishery. If these consultations and negotiations are not successful, Justice Garson ruled that Canada has leave to apply at a subsequent trial to tender further evidence on justification and the plaintiffs would also have leave to tender further evidence in this regard. Overall, the case is being treated as a victory for the plaintiffs, in that they have established their aboriginal right to fish for and sell any species of fish found within their traditional territory and Canada must accommodate this right in its regulation of the fisheries. Following the decision, members of the plaintiff Nuu-chah-nulth Nations bands gathered on the courthouse steps for a press conference, attended by many media personnel, onlookers, lawyers and general public to celebrate the recognition of their aboriginal right to fish and sell fish commercially.

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BC Supreme Court rules against Nlaka'pamux Nation Tribal Council - Finds that EAO fulfilled duty to consult

Fri, 25 Sep 2009 11:39:00 PDT

On September 17, 2009, in <a href="http://www.courts.gov.bc.ca/jdb-txt/SC/09/12/2009BCSC1275.htm" target="_blank">Nlaka'pamux Nation Tribal Council v. Griffin 2009 BCSC 125</a>, the Honourable Mr. Justice Sewell of the BC Supreme Court ruled against the Nlaka'pamux Nation Tribal Council (NNTC) in a case involving the proposed expansion of the Cache Creek landfill (Expansion) and NNTC's Petition against a section 11 Order (Order) issued by the British Columbia Environmental Assessment Office (EAO) on October 22, 2008. At issue in this case was how the EAO should have fulfilled its duty to consult the Nlaka'pamux Nation with respect to its review of the Expansion project under the Environmental Assessment Act (EAA), taking into account, a division of opinion within the Nation. NNTC argued that the decision by Mr. Griffin, the EAO Project Assessment Director, to exclude it as the representative of the Nlaka'pamux Nation, meant that there was not and could not be adequate consultation with the Nlaka'pamux Nation on any decision to issue an EA Certificate. However, one circumstance the EAO had to consider was that the two First Nations Bands that would be most affected by the Expansion, Ashcroft Indian Band (Ashcroft) and Bonaparte Indian Band (Bonaparte), supported the project, while the NNTC, where Ashcroft is a member, opposed it. Ashcroft and Bonaparte were included in the Order and Terms of reference, while NNTC was not. Bonaparte is a member of the Secwepemc Nation. The government on the other hand, argued that the only truly effective consultation with NNTC was on a government to government basis and that this basis for consultation was in place through an amendment made to the section 11 Order. The amendment added a paragraph to the effect that the EAO may engage in additional consultations with an aboriginal entity, whether or not it is named as a "First Nation" in the Order. The government also argued that the NNTC was well aware that they were not included in the Terms of Reference, and Ashcroft argued that the NNTC did not speak on behalf of the people of the Ashcroft Band. On reviewing the Petition on a standard of reasonableness, Justice Sewell held that the EAO properly defined the scope and content of consultation appropriate when issuing the Order, given the particular circumstances it had to consider and that it satisfied its obligations to consult, pursuant to the Constitution Act and the EAA. One of the main circumstances to consider in this case was the divergence of opinion between NNTC and Ashcroft, and the authority of NNTC to speak on behalf of all Nlaka'pamux people. In addressing this point, he commented (at para 73):   "What is the government to do when faced with a diversity of putative representation on behalf of a First Nation? In my view, the government must discharge its duty to consult by taking reasonable steps to ensure that all points of view within a First Nation are given appropriate consideration. As I indicated above, government also has a duty to carry out its statutory mandate under applicable legislation. It must therefore balance its obligations to consult with its obligation to carry out its statutory duty in an effective manner."   Justice Sewell saw no objection in principle to EAO consulting with a specific Band, if the government also undertook appropriate consultation with the First Nation (which he believed it would). Given this, Sewell found that "it cannot be said that the NNTC has been denied an appropriate and effective opportunity to be consulted and accommodated with respect to the environmental assessment of the Expansion project." In sum, this case could be said to stand for the proposition that in situations where there are numerous First Nations Bands and organizations involved, with some having a divergence of position, as long as the Crown (and parties delegated to by the Crown) properly define the scope and content of consultation with the First Nations parties involved (given the circumstances existing) the duty to consult and accommodate may be fulfilled. Separate consultation protocols by the government can be the right approach, particularly "where there is a clear divergence of opinion between the putative representative of the Nation and the representatives of the Band." As a side note, with respect to the landfill, the province approved a one-year annex to the landfill in early September, while the long-term Expansion project remains with the EAO for consideration.

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2nd Anniversary of the UN Declaration on the Rights of Indigenous Peoples - Canada not signed on

Mon, 14 Sep 2009 17:28:00 PDT

Two years ago, on September 13, 2007, the General Assembly of the United Nations adopted the <a href="http://www.un.org/apps/news/story.asp?NewsID=23794&Cr=indigenous&Cr1" target="_blank">Declaration on the Rights of Indigenous Peoples</a>, after 143 Member States voted in favour of it. Notably, 11 countries abstained, and four: Australia, Canada, New Zealand and the United States - voted against it. The Declaration is a non-binding "principles" based document which emphasizes the rights of the world's estimated 370 million indigenous people and prohibits discrimination against them. It also promotes their full and effective participation in all matters that concern them, and their right to remain distinct and to pursue their own visions of economic and social development. <a href="http://www.canadianbusiness.com/markets/cnw/article.jsp?content=20090911_150502_2_cnw_cnw" target="_blank">Assembly of First Nations National Chief Shawn Atleo is quoted as stating</a> that "September 13 is a landmark day for the world's Indigenous peoples, but a black mark on Canada's international reputation." At the time of signing the Declaration, Ambassador John McNee of Canada is quoted as saying that Canada was disappointed to have to vote against the Declaration, but it had "significant concerns" about the language in the document, including that the provisions on lands, territories and resources "are overly broad, unclear and capable of a wide variety of interpretations" and "could put into question matters that have been settled by treaty."

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Ontario announces two programs to enhance Aboriginal participation in the new green economy

Tue, 08 Sep 2009 14:07:00 PDT

Last week, Ontario announced the <a href="http://www.davis.ca/en/blog/Climate-Change-Law-Practice-Group/2009/09/03/OPG-shuts-down-4-coal-fired-units-ahead-of-schedule">early closure of 4 of OPG's coal-fired generating units</a>. The Ministry of Energy and Infrastructure described the announcement as the first of its 10 steps to "transition the province to electricity generated from green energy which will open investment and opportunities in Ontario's green economy." The Ministry <a href="http://news.ontario.ca/mei/en/2009/09/support-for-first-nation-and-metis-communities-in-green-energy-development.html">announced steps 2 and 3</a> last Friday. The latest steps, which will facilitate the participation of Aboriginal communities in Ontario's new green economy, are the creation of the following: 1) An <a href="http://news.ontario.ca/mei/en/2009/09/creating-jobs-and-promoting-economic-sustainability-for-aboriginal-people-with-the-aboriginal-loan-g.html">Aboriginal Loan Guarantee Program</a> This $250 million program will offer loan guarantees for up to 75% of an Aboriginal corporation's equity interest in a renewable power project. The guarantees will make it easier for Aboriginal communities to take on equity participation in renewable generation and transmission projects. Aboriginal equity participation can make projects more lucrative. Under the OPA's FIT program, projects with greater than 20% Aboriginal equity participation are eligible for a FIT price adder. While details of the program have yet to be announced, the Ministry indicated that projects would have to undergo a "extensive due diligence process." Projects will have to meet "stringent" eligibility criteria, including the following: <ul> <li> Agreements in place to sell or transmit electricity at a pre-determined cost (e.g. power purchase agreements for generation or regulated rates for transmission projects);</li> <li> Experienced proponents and business partners with track records in construction and infrastructure operation;</li> <li> Secured commercial financing arrangements; and</li> <li> Aboriginal communities would be required to create wholly-owned corporations to take on all aspects of the project, such as signing contracts and entering partnership agreements.</li> </ul> The Ontario Financing Authority will manage the program. 2) An <a href="http://news.ontario.ca/mei/en/2009/09/aboriginal-energy-partnerships-program-creating-green-energy-opportunities-for-first-nation-and-meti.html">Aboriginal Energy Partnerships Program </a> The AEPP will support Aboriginal communities that wish to participate in Ontario's new green economy by providing the following: <ul> <li> Support for Community Energy Plans. A Community Energy Plan will allow Aboriginal communities to determine local interests, needs and opportunities for renewable energy development, conservation, grid connection and reducing reliance on diesel in remote communities;</li> <li> Support through funding project pre-feasibility and feasibility studies, development of business cases, resource assessment, environmental and technical studies as well as other soft costs for First Nation and Métis energy projects; and</li> <li> Support to establish the Aboriginal Renewable Energy Network, an online based centre for sharing of knowledge and best practices related to First Nation and Métis green energy projects.</li> </ul> The Ontario Power Authority will manage this program.

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Chiefs reject proposed Recognition and Reconciliation Act

Fri, 28 Aug 2009 15:52:00 PDT

At British Columbia's All Chiefs Assembly, a gathering of 250 chiefs (elected and hereditary) met with native elders to discuss the BC government's proposed Recognition and Reconciliation Act, and <a href="http://www.fns.bc.ca/pdf/AllChiefsAssembly_MediaStatement.pdf" target="_blank">formally rejected the proposed legislation</a> on Friday (August 28, 2009). The Chiefs issued a statement to the media, quoting Grand Chief Edward John as stating that "The Province of British Columbia cannot and does not have jurisdiction over our Indigenous Title and Rights and as such the proposed legislation is dead. Under the proposed Recognition and Reconciliation Act, First Nations bands would not need to prove their aboriginal title in court, and a system would be established for joint decision-making and resource-sharing on Crown land within a band's traditional territories. In addition, it would provide for the creation of a new system of native governance to replace the 203 bands in the province with 30 Indigenous Nations based on pre-contact native society.

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Haida Signs MOU for an Option to Invest in Naikun Offshore Wind Energy Project

Thu, 13 Aug 2009 14:17:00 PDT

Haida Enterprise Corporation ("HEC"), the business arm of the <a href="http://www.haidanation.ca/" target="_blank">Haida Nation</a>, has signed a Memorandum of Understanding with the <a href="http://www.naikun.ca" target="_blank">NaiKun Wind Energy Group Inc.</a> ("Naikun") for an option to purchase an up to 40% stake in the Naikun Wind energy project off BC's north coast. HEC and the Haida Nation plan to seek federal support for their participation, and consider the initiative to fit with the new <a href="http://www.ainc-inac.gc.ca/ecd/ep/fdf/pubs/dsg/dsg-eng.asp" target="_blank">Federal Framework for Aboriginal Economic Development.</a> The $2-billion project will be financed with 70 per cent debt and 30 per cent equity. The Haida equity share is $240 million. NaiKun and Enmax Green Power Inc. currently each own 50 per cent of the project company. The Naikun project is a proposed 396 MW Phase 1 offshore wind energy project located in the traditional territory of the Haida Nation, in the Hecate Strait (the "Project"). Naikun submitted a proposal for the Project on November 24, 2008 into BC Hydro's Clean Power Call ("Clean Power Call"), and its Environmental Assessment application for Phase 1 to British Columbia's Environmental Assessment Office (EAO) was accepted on May 20, 2009. Final evaluation of proposals and Electricity Purchase Agreements (EPAs) with BC Hydro were scheduled for Mid-April through June 2009 for the Clean Power Call. Evaluation and execution of EPAs has been delayed, due in part to the British Columbia Utilities Commission's (BCUC) decision on BC Hydro's long-term acquisition plan (LTAP), <a href="http://www.davis.ca/en/blog/Climate-Change-Law-Practice-Group/2009/07/29/BC-Green-Agenda-Hits-Big-Bump">which we have blogged on a previous post</a>. BCUC's decision has created some uncertainty with respect to the Clean Power Call and how much power will ultimately be purchased by BC Hydro, and when. Despite BCUC's decision, the Government of BC has stated that they remain committed to moving forward with the Clean Power Call, and firmly committed to the BC Energy Plan and that development of clean energy resources in the province remains a priority. Whether the Clean Power Call proceeds as designed or not, HEC and the Haida Nations involvement with the Project has provided optimism for the Haida Nation and Naikun for a successful wind-energy future off the coast of BC, and ultimately for a signed EPA with BC Hydro.

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