Client Update: Newfoundland and Labrador Aboriginal Consultation Policy

The Government of Newfoundland and Labrador (“NL”) has recently released its “Aboriginal Consultation Policy on Land and Resource Development Decisions” (the “Policy”). A copy of the Policy can be accessed here.

This new Policy is the product of consultations with Aboriginal organizations, industry stakeholders, and the public. The Policy aims to clarify NL’s role in the Aboriginal consultation process and sets out NL’s expectations of project proponents and Aboriginal organizations in that process. The ultimate goal is to help ensure that resource development decisions minimize or eliminate potentially adverse impacts on asserted Aboriginal rights. The Policy is primarily aimed at land use and resource projects and developments, but it applies broadly to also include wildlife management decisions.

Although the Policy will have application to both recognized and unrecognized Aboriginal rights claims, it will not apply to consultation with either the Labrador Inuit (whose consultation rights are formalized in the Labrador Inuit Land Claims Agreement Act ) or the Labrador Innu (whose consultation rights will be covered by the land claims agreement which has been settled in principle with NL and the Government of Canada).

Practically speaking, the new Aboriginal Consultation Policy will have principal application to those aboriginal groups which have asserted claims in Labrador which have not been recognized or accepted for negotiation by Government. These include claims asserted by NunatuKavut Community Council, the Naskapi Nation of Kawawachikamach, and the Quebec Innu communities of Matimekush-Lac John, Uashat mak Mani-Utenam, Ekuanitshit, Nutakuan, Unamen Shipu and Pakua Shipi (all of which are specifically named in the Policy).

KEY FEATURES

NL expects that land use and resource proponents will benefit from the Policy as it will ensure that potential impacts of development activities are understood and addressed in a timely and transparent fashion.

Some key features of the Policy, which introduces new process and cost burdens which depart from conventional Aboriginal consultation principles and practice, include the following:

    • the Policy will in most cases operate to transfer the burden of consultation and accommodation from NL to project proponents – effectively, proponents will be expected “to resolve any outstanding issues between the proponent and Aboriginal organization(s)”;
    • the Policy will require consultation to be initiated at the earliest stage of a land or resource development activity;
    • the Policy will require a proponent and an impacted Aboriginal group to exchange information relevant to the proposed development activities and to the aboriginal rights claimed, and will require meaningful good faith discussions between the parties;
    • the Policy will require a proponent to provide “any consultation supports or capacity funding reasonably required by Aboriginal organization(s)” in the consultation process – simply put, this means that a proponent will be required to pay for certain unspecified categories of an Aboriginal group’s consultation costs, including the costs associated with the Aboriginal group’s position as to the impact of the proponent’s proposed activities on the asserted Aboriginal rights;
    • the Policy prescribes the expectation that, during the consultation process, a proponent will discuss project-specific opportunities with the impacted Aboriginal group “with the goal of achieving a positive, sustainable and mutually beneficial outcome” – this arguably introduces an expectation of project benefits in any agreement achieved in the consultation process; and
    • the Policy also requires a proponent to pay financial consideration in regard to any necessary accommodation of the infringement of Aboriginal rights.

 

    The Policy’s emphasis on a proponent-led consultation may prove to be a positive change, as this will likely allow a greater measure of control over the process by the proponent.
    However, the Policy’s provisions regarding capacity funding, benefits expectations and accommodation compensation introduce unconventional consultation requirements and costs. These provisions effectively formalize elements which have not traditionally been required to form part of the consultation process (although they can, in practice, be matters which are negotiated and form part of an access or other form of agreement achieved in consultation).

NEW CONSULTATION GUIDELINES TO BE PROCLAIMED

NL is presently preparing Consultation Guidelines which will implement the Policy in a regulatory framework. It is anticipated that the Consultation Guidelines will prescribe the detailed procedures and timelines which will govern the consultation process, including the process leading up to decisions by NL as to land use and resource developments. It is understood that the Guidelines will address consultation respecting specific activities such as mineral exploration, environmental assessment of resource developments and post-environmental assessment permitting.

WHAT THIS MEANS FOR YOU

The Policy has wide-ranging implications. Most significantly, it imposes new procedural and financial obligations on land use and resource proponents. It is anticipated that the Consultation Guidelines will clarify these new obligations. The Consultation Guidelines will themselves involve consultation with land and resource use stakeholders and with a broad range of Aboriginal groups. It is not expected that the Guidelines will be formalized until year-end 2013. This means that there will be some uncertainty in the consultation process until the Consultation Guidelines are settled and published.

The foregoing is intended for general information only. If you have any questions, or for a detailed listing and description of the competencies of members of our Labrador Practice Group.

SHARE

Archive

Search Archive


Domaines de pratique :
Name:
More results...

 
 

The New Brunswick Labour and Employment Board affirms longstanding practice against piecemeal certification of bargaining units

July 8, 2019

Bryan Mills and John Morse On May 21, 2019, the New Brunswick Labour and Employment Board (”Board”) dismissed an application by the New Brunswick Union of Public and Private Employees (“Union”) seeking certification as bargaining…

Read More

Carbon pricing: Ontario Court of Appeal delivers constitutional endorsement

July 5, 2019

Jonathan Coady and Justin Milne The Ontario Court of Appeal has found that the Greenhouse Gas Pollution Pricing Act¹ is valid federal legislation.² The Act implements national minimum pricing standards to reduce greenhouse gas (“GHG”) emissions.…

Read More

A Charter right to testamentary freedom? The NSSC decision in Lawen Estate

July 2, 2019

Richard Niedermayer, TEP, Jennifer Taylor and Bhreagh Ross, summer student There is a right to testamentary freedom under section 7 of the Charter, according to a recent decision of the Nova Scotia Supreme Court. In…

Read More

Hydro-Quebec now subject to annual energy cap, but not a monthly cap, under much-disputed 1969 power contract: Churchill Falls (Labrador) Corp. v Hydro-Quebec, 2019 QCCA 1072

June 24, 2019

John Samms Introduction Much ink has been spilled on the controversial 1969 power contract between Hydro-Quebec and CFLCo (the contract) and last week the Quebec Court of Appeal added to the pile with its decision…

Read More

Final cannabis edibles, topicals and extracts regulations released

June 17, 2019

Kevin Landry On June 14, 2019, Health Canada announced the release of the final version of amendments to the Cannabis Regulations, which will permit for the production and sale of edibles, extracts and topicals. The…

Read More

Trademark changes

June 17, 2019

Daniela Bassan and Divya Subramanian The Canadian Trade-marks Act will be amended effective June 17, 2019. As a result, the Act will undergo a complete overhaul on various aspects of trademark prosecution, registration, and enforcement.…

Read More

Discovery: Atlantic Education & the Law – issue 04

June 12, 2019

We are pleased to present the fourth issue of Discovery, our very own legal publication targeted to educational institutions in Atlantic Canada. While springtime for universities and colleges signal the culmination of classes, new graduates…

Read More

How employers can protect themselves with respect to social media

May 29, 2019

Grant Machum and Richard Jordan   In an earlier article, we considered an employer’s options when an employee departs and takes with them the social media contacts they have obtained during the course of their…

Read More

Canada’s Digital Charter – a principled foundation for a digital future?

May 28, 2019

Matthew Jacobs and Daniel Roth (summer student)   “… we cannot be a Blockbuster government serving a Netflix society.” – The Hon. Minister Navdeep Bains paraphrasing the Hon. Scott Brison (May 2019, at the Empire…

Read More

New reporting requirements for beneficial ownership of federal corporations coming this June

May 24, 2019

Tauna Staniland, Andrea Shakespeare, Kimberly Bungay and Alycia Novacefski The federal government has introduced new record keeping requirements for private, federally formed corporations governed by the Canada Business Corporations Act (“CBCA”). The amendments to the…

Read More

Search Archive


Domaines de pratique :
Name:
More results...