November 2012

Trends in Aboriginal Law

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2Ontario’s New Mining Regulations• Amendments to Ontario’s mining and exploration regime• New September 2012 Early Exploration Consultation Guidelines• New graduated approach to consultation depending on activities• Ministry of Northern Development and Mines will notify aboriginal

groups of recorded claims• Exploration Plans and Exploration Permits will be subject to

consultation – MNDM will take lead – comments within 3 weeks• “Lack of response [from an aboriginal group] will not prevent a

decision from MNDM”• Proponents expressly expected to reimburse aboriginal groups

for consultation expenditures• Some consultation expenditures now “eligible expenses for

assessment credit”• Dispute resolution process

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3Alberta’s New Consultation Guidelines• Issues 3 page discussion in Fall 2012• Alberta currently reviewing its 2005 Consultation

Policy on Land Management and Resource Development

• Changes being considered:• Greater role for Government of Alberta (e.g. centralized

Consultation Office)• Doesn’t address actual decision-making processes directly• Development of a Consultation Process Matrix

• Identification of categories of impact• Can’t be too rigid• Capacity Funding – levy on industry to be managed and

distributed by Alberta• Financial disclosure of benefits agreements

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4New Canadian Environmental Assessment Act• Overall intent and effect of subsection 5(1)(c)?

• 5. (1) For the purposes of This Act, the environmental effects that are to be taken into account in relation to an act or thing, physical activity, a designated project or a project are

[…]

(c) With respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on

(i) health and socio-economic conditions,

(ii) physical and cultural heritage,

(iii)the current use of lands and resources for traditional purposes, or

(iv)any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

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5Foreign Investors and Corruption Concerns

• U.S. Foreign Corrupt Practices Act• Prohibits payments of foreign officials for purpose of

obtaining or retaining business• Exception to facilitate routine governmental actions

• U.K. Bribery Law• Prohibition on bribing foreign public officials – purpose to

influence a foreign public official which is broadly defined

• Mitigation – governmental policy• Mitigation – transparency, documentation,

negotiation in a group context and directing payments to community as a whole

• Be wary of contracting with elected officials or their relatives/affiliates

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6Hul’qum’num Treaty Group – Petition to the Inter-American Commission on Human Rights – Case P-592-07• HTG represents a number of First Nations on

Vancouver Island• Petition to the IACHR claiming that Governments’

refusal to put private lands on the treaty table for negotiation breaches the American-Convention on Human Rights (breaches of right to equality; religious freedom; right to culture; right to property, etc.)

• Involves more than 200,000 ha of privately owned land

• Hearing heard late October 2011• Case has been argued; now awaiting decision of

IACHR

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7B.C. Court of Appeal• Trending towards consistent application of

Supreme Court of Canada guidance• Three recent examples:

• William v. British Columbia, 2012 BCCA 285 (June 2012)• Confirms postage stamp approach to aboriginal title

• Adams Lake Indian Band v. L.G. in Council, 2012 BCCA 333 (August 2012)• Emphasis on adequacy of consultation conducted

• Neskonlith First Nation v. Salmon Arm, 2012 BCCA 379• No duty to consult on municipalities, emphasis on facts

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8Aboriginal Law as Part of Canadian Law• Not sui generis• Law of trusts• Law of evidence• “Honour of the Crown”• Administrative law and fairness• Injunctive relief• Fiduciary law

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9Emerging Litigation Issues

• Métis rights• Challenge of who is a Métis? • Disparity among provincial and territorial

treatment and recognition of Métis rights and interests.

• Modern treaties and their interpretation• Honour of the Crown and contracts between the

Crown and Aboriginal peoples• Accommodation at law – “palpable error”• Compensation for breaches of duty to consult• Infringements of aboriginal and treaty rights• Third party claims against the Crown

10Tom Isaac B.A., M.A., LL.B., LL.M.

Tom Isaac is a partner in the Vancouver office of McCarthy Tétrault and leads the firm’s National Aboriginal Law Group. He advises industry and government clients across Canada on aboriginal, energy, natural resource and environmental assessment matters and regularly acts as a negotiator for industry and governments dealing with aboriginal groups. He has appeared before the Supreme Court of Canada, British Columbia Court of Appeal and Supreme Court, Northwest Territories Supreme Court, Ontario Energy Board and British Columbia Environmental Appeal Board dealing with aboriginal legal matters.

He was a Chief Treaty Negotiator for the Province of British Columbia and prior to that was Assistant Deputy Minister for the Government of the Northwest Territories responsible for establishing Nunavut. He also served in a senior capacity with the Government of Saskatchewan.

He is the author of Aboriginal Law: Commentary and Analysis (2012) and Aboriginal and Treaty Rights in the Maritimes: The Marshall Decision and Beyond, along with eight other books and numerous articles on aboriginal legal matters. Mr. Isaac’s published work on aboriginal law has been cited with approval by courts across Canada, including the Supreme Court of Canada and the Federal Court of Appeal.

Mr. Isaac is recognized in the 2013 edition of The Best Lawyers in Canada in the area of aboriginal law and in the 2012 edition of Benchmark Canada, The Definitive Guide to Canada’s Leading Litigation Firms & Attorneys. He also appears in the 2012 Canadian Legal Directory, as a leading practitioner in aboriginal law, as well as the 2012 Chambers Global: The World’s Leading Lawyers for Business in aboriginal law.

Mr. Isaac is a member of the law societies of British Columbia, Alberta, the Northwest Territories, Nunavut and Yukon (formerly a member of the Law Society of New Brunswick).

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