W+SEL welcomes new associate Our First Nations and Métis law practice focuses on the
intersection of Aboriginal law with resource and infrastructure
development. We have negotiated precedent-setting agreements that
facilitate practical solutions involving First Nations and
Métis, municipalities, resource developers and the
environment. We help clients reach reasonable agreements that are
'win-win' solutions and avoid the cost and disruption of
court proceedings. When recourse to the courts and tribunals is
necessary, we are experienced and determined advocates. When Ontario unveiled its proposed revisions to the Mining
Act on April 30, 2009, they purportedly had already won the
widespread support of industry stakeholders, environmentalists and
Aboriginal groups. Fractious hearings before the
Legislature´s Standing Committee on General Government have
revealed that a number of serious irritants still remain. Despite
the concerns raised during the hearings, the committee referred
Bill 173 back to the Legislature with only a handful of technical
amendments. The revised Bill passed Third Reading October 21,
2009. Aboriginal groups are angry about the lack of pre-consultation
and the fact that the reforms will not require "informed
consent" before mining takes place on Aboriginal lands.
Aboriginal and First Nations groups appearing before the committee
have called Bill 173 a "mockery", a "regulatory
mess" and "insulting". Even the Ontario Mining
Association (OMA), while supportive of the general intent and
directions of Bill 173, said the Aboriginal consultation provisions
must be "clear, transparent and consistent with current case
law". While the revised Act includes as part of its Purpose the clause
"to encourage prospecting, staking and exploration in a manner
consistent with Aboriginal and treaty rights including the duty to
consult," there is no guidance on how to implement this
goal. Kenning Marchant, an executive member of the Aboriginal law
section of the Ontario Bar Association (OBA), told the committee
that "clear standards" governing Aboriginal consultation
and dispute resolution should be incorporated into the revised
Mining Act. The OBA recommended that the Purpose of the
revised Act be amended to emphasize "...the duty to consult
and, where appropriate, accommodate, consistent with the honour of
the Crown" to more accurately reflect Supreme Court
jurisprudence. In accordance with current case law, consultation is
a substantive obligation of the Crown that cannot be delegated to
project proponents, except for defined procedural aspects. The OMA called for the appointment of "government-appointed
mineral development officers" who would shoulder "full
responsibility not just for the approval but for the actual conduct
of consultation, thus fulfilling the government's duty to
consult." The OMA and OBA recommendations were not
incorporated into the amended Bill. Since "consultation" can be such a vague term, the OBA
also said that consultation standards should be attached as a
schedule to the revised Act. "Standards are required on
timing, on information exchange, on the rights recognition process
and on impacts analysis," Marchant said. "Guidelines are
needed on what aspects can be procedurally delegated to project
proponents." The OBA said funding is needed to ensure
Aboriginal communities and organizations are in a position to
consult in a meaningful way. The OBA suggested that the definition of those areas restricted
from prospecting should be amended to include any "site of
spiritual, historical or ceremonial significance for Aboriginal
communities." The OBA strongly recommended that a database of
such sites be established. The OBA warned that the Bill's dispute resolution
arrangements for Aboriginal consultation are "vague and
potentially controversial". Rather than allow the minister to
dictate, the 'who', 'what' and 'why' of
dispute resolution – especially as the government is
always a party to such a constitutional issue – the OBA
recommended an alternative two-stage process. Conventional
mediation would be followed, if necessary, by more formal
adjudication through an independent tribunal, which could be either
the courts or a special-purpose body authorized by the Legislature.
Again, the committee did not incorporate these recommendations in
the revised Bill; it did, however, more explicitly define the
Minister's powers (in s.170.1(3)) resolving disputes. W+SEL's Juli Abouchar, whose practice focuses on
environmental, energy and Aboriginal law, is a member of the OBA
committee that reviewed and commented on the Mining Act
revisions. Bill 173, proposed amendments to the Mining Act, was
introduced for First Reading on April 30, 2009, passed Second
Reading on May 27th, and was referred to the Standing Committee on
General Government. Hearings were held during August, a series of
amendments debated in September, and the amended Bill tabled in the
Legislature on October 8, 2009. Bill 173 passed Third Reading
October 21, 2009. With the passage of the amendments to the Mining Act,
the Ministry of Northern Development, Mines and Forestry will
immediately begin to develop regulations and policies to implement
many of the new provisions. These will cover Laying the groundwork for a resource benefits sharing
plan Historically, Aboriginal peoples have not been accorded their
fair share of benefits – the revenues, employment
opportunities or other economic spin-offs – derived from
natural resource development in Ontario. In April 2009, the
provincial government made an initial $30 million commitment to
addressing that deficit. However, the funds will not be budgeted
and allocated until a resource benefits sharing plan is in place. A
sub-table of the Ipperwash Inquiry Priorities and Action Committee
(IIPAC), established by the Ontario government and First Nations
and Métis leadership, is currently conducting economic
research and collecting data on Crown revenues in order that First
Nations can "understand the nuances and make an informed
decision" on such a plan. The sub-table is determining just
what could be considered a "natural resource", exploring
revenue sharing options and models, and reviewing treaties and
historic agreements related to sharing benefits from natural
resource development. The sub-table has drafted a "high
level" plan to gather input from First Nations communities on
the options for Crown resource revenue sharing. It would also like
to bring federal authorities to the table. Fullblown consultations
won't begin until next year. At the same time, the province has
initiated discussions on resource benefits sharing with each of the
Grand Councils. W+SEL will track this initiative and provide
updates on future developments. Bill 191, an Act with respect to land use planning and
protection in the Far North, was introduced for First Reading on
June 2, 2009. In an unusual move, the Bill was immediately referred
to the Standing Committee on General Government for review.
Hearings were held in August and the committee is currently
considering possible amendments. Additional consultation will
likely be scheduled following Second Reading. Aboriginal groups are trying to either kill or radically rewrite
Ontario's proposed Far North Act. Introduced on June
2, 2009, Bill 191 is designed to directly involve First Nations in
a community-based land use planning process that would support the
sustainable economic development of the region's natural
resources. The Bill was dissected during standing committee
hearings this summer and is currently being revised on a
clause-by-clause basis. The "Far North" includes all the lands north of a line
running from the Manitoba border in the west to James Bay in the
east, or about 42 percent of Ontario's land mass. At least half
of the region – approximately 225,000 square kilometres
– would be protected in an interconnected network of
conservation lands. In addition, a moratorium would be placed on a
number of activities – including the opening of a new
mine, commercial timber harvesting, oil and gas exploration and
development, and wind and waterpower projects – until a
community land use plan is in place, a process that could take a
great deal of time. Although prospecting and staking will still be
permitted, the moratorium is expected to put a chill on the pace of
future investment and development in the region. Nishnawbe Aski Nation (NAN), a support organization for
virtually every First Nations community in the Far North, has
condemned Bill 191 and says it is prepared to "take all steps
necessary" to stop the Bill from becoming law. NAN is adamant
that any new legislation not preclude economic opportunities for
future generations and that First Nations retain the capacity to
develop natural resources where, when and if appropriate. "Our
definition of protected areas means saving something for future
uses," NAN Grand Chief Stan Beardy told the committee. NAN's position was echoed, in part, by the Ontario Mining
Association (OMA). The OMA told the committee it was concerned that
the Bill "is strong on conservation targets but non-existent
on development targets." It says the development of ten new
mines over the next ten years would be a reasonable target and
would provide jobs and other economic benefits for Aboriginal
communities. OMA also called for the allocation of greater
governmental resources – in the order of "hundreds
of millions of dollars" – to enhance the capacity
for land use planning by First Nations, local authorities and
companies in the Far North. NAN characterized the consultation process to date as
"rushed, insensitive to the First Nations" and said it
violated the province's legal duty to consult with First
Nations. "Bill 191 isn't a partnership"," said
Chief Beardy. "It is an entrenchment of the powers of MNR
[Ministry of Natural Resources], and it is a violation of our
treaty understanding that we would coexist and share [resources] as
equal partners." Not all Aboriginal organizations are committed to killing the
legislation. The Windigo First Nations Council, which provides
technical and advisory services to seven First Nations groups in
northwestern Ontario, considers the proposed legislation "an
acceptable and necessary way" to build a foundation for
economic, social, cultural and environmental development. "The
legislation binds both the province and the First Nations to the
approved community plans," the Council said. However, it
condemned "the arbitrary imposition of a
225,000-square-kilometre protected area." The Windigo Council said it will not accept the status quo of
absolute provincial discretion in land and resource
decision-making. It insists that "any further discussions or
negotiations on the Far North legislation be conducted directly
with First Nations and tribal councils as it relates to their
traditional lands and treaty territories, on a
government-to-government basis." Brad Maggrah, president of the Ontario Coalition of Aboriginal
People (OCAP), says the province must extend its consultation
efforts beyond those living on Indian Act reserves.
"The Ontario government must open the doors to consultations
for Indians on and off-reserve and the Métis to ensure the
transparency and legitimacy of this process," Maggrah told the
committee. "To date, we have received no funding or support
from this province and we have not been involved in the drafting of
the legislation and the Crown has not respected our
interests." As it is currently written, OCAP says Bill 191
discriminates against the Métis, non-status people and
status people living offreserve and "will result in more
conflict and legal disputes". The province has proposed a 25- year Growth Plan for Northern
Ontario to "guide future policy development and infrastructure
investments". The Growth Plan covers all 800,000 square
kilometres of Northern Ontario and is designed to ensure its
economic and employment growth. More a grab bag of proposed
policies and programs than a coordinated strategy, the Growth Plan
is intended to Public meetings will be held in November and December to solicit
feedback from stakeholders. The deadline for written comments on
the proposed Growth Plan is February 1, 2010. See www.placestogrow.ca As part of its rollout of Ontario's Green Energy
Act, the Ministry of Energy and Infrastructure has announced
two programs to help Aboriginal groups and local communities
participate in the renewable energy boom. These initiatives should
provide greater access to capital markets, help reduce the interest
rates on loans for eligible borrowers, and fund many of the plans
and studies needed to push projects forward. In addition, renewable
energy projects with significant Aboriginal participation will be
eligible for "price adders" under the Ontario Power
Authority's feed-in tariffs (FIT) program, as well as reduced
security payments for applicants. Although full details are not expected to be released until the
new year, the $250 million Aboriginal Loan Guarantee
Program (ALGP) will guarantee up to 75 percent of an
Aboriginal proponent's equity in an eligible project, up to a
maximum of $50 million per project. In turn, 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. The Ontario Financing Authority, an agency
of the Ministry of Finance, is expected to administer the
program. A second government initiative, the Aboriginal Energy
Partnerships Program (AEPP), will provide funding for many
of the key developmental stages needed to bring projects on stream.
These include preparation of community energy plans,
pre-feasibility and feasibility studies, business cases, resource
assessments, and environmental and technical studies. The program
would also establish the Aboriginal Renewable Energy
Network, an online-based centre for sharing knowledge and
best practices. The AEPP will be managed through the Ontario Power
Authority (OPA) following a directive by the Minister. Specific
arrangements, delivery partners and access to services are still to
be determined and will be implemented with continued advice from
Aboriginal leaders and experts in the area of renewable energy
development. Aboriginal and community-based renewable energy projects may be
eligible for "price adders" under OPA's
Feed-in Tariff (FIT) Program. The FIT program provides
long-term power purchase contracts to qualifying proponents for
energy generated from renewable sources, including biomass, biogas,
landfill gas, on-shore and off-shore wind, solar photovoltaic and
waterpower. The FIT rate varies depending on the renewable energy
source, the size and positioning of the facility, whether power is
supplied during peak periods, and other considerations. The Aboriginal or community participation level (as defined in
the FIT rules) determines the percentage of the maximum price adder
that will be added to the FIT contract price (see the table on the
following page). For example, if an Aboriginal partner exercises 50
to 100 percent control of a project, it will be eligible for the
full price adder of an additional 1.5 cents/kWh (in the case of a
39% control qualifies for 50% of the price adder; and 10-24%
control qualifies for 20% of the price adder. In addition, projects controlled by Aboriginal communities (with
a greater than 50 percent participation level) qualify for a
reduced security payment of $5 per kilowatt (kW), regardless of the
type of renewable energy. The FIT Program was launched October 1,
2009, offering priority access to the available connection capacity
for projects that have already reached certain development
milestones. Connection capacity will be allocated according to a
different set of rules beginning November 30, 2009. Further
information, including the full price schedules, FIT rules and
application forms, is available on the OPA website at http://fit.powerauthority.on.ca/ To be eligible for ALGP support, renewable energy generation and
electricity transmission projects must be commercially viable. A
project would be required to have FIT Rate Wind Solar Water Biogas Biomass Landfill Basic FIT rates 13.5-19.0 40.2-80.2 12.2-13.1 10.4-19.5 13.0-13.8 10.3-11.1 Maximum Aboriginal price 1.5 1.5 0.9 0.6 0.6 0.6 Maximum community price 1.0 1.0 0.6 0.4 0.4 0.4 The Accord makes it clear that participation in the initiative
does not absolve either Canada or Ontario from resolving land claim
issues on lands considered for the green hubs or others in the Six
Nations Tract. "This is not a definitive document. It's
kind of like sitting in a canoe going into a foggy bunch of
water," said Chief Bill Montour of Six Nations at the signing
of the Accord. "It's a way forward so that we can work
together." Six Nations of the Grand River Territory has teamed up with the
County of Brant to attract renewable energy research, development,
manufacturing and production facilities to southwestern Ontario.
The Green Energy Economic Accord (the "Accord"), signed
in September, focuses on the joint development of one or more Green
Energy Parks on fully serviced lands near the Highway 403
interchanges. The Accord partners are hopeful that the area will be designated
one of the "green hubs" the Ministry of Energy and
Infrastructure plans to establish to support implementation of its
Green Energy Act. If successful, any company looking to
sell green energy technology or set up in Ontario would be directed
to the partnership. A number of other communities reputedly are
vying for such a designation, including Oshawa, Sault Ste. Marie,
Haldimand-Norfolk and Chatham-Kent. Six Nations and Brant County have formed a green energy and
economic development commission, with members from both councils,
to promote green energy initiatives. Other municipalities are
invited to join the commission, with the City of Brantford already
expressing interest. In the meantime, the partners are looking for
federal/provincial interest free loans to finance the land
acquisitions and development, and will seek to have the location
designated under the province's Tax Incentive Zones
Act. A recent Alberta Provincial Court case (R. v. Lizotte,
2009 ABPC 287) has confirmed that settlement Métis in that
province have a legal right to hunt or fish as "Powley
Métis" pursuant to section 35 of the Constitution
Act, 1982. Moreover, the membership cards issued to settlement
Métis in Alberta are sufficient proof of identity to
exercise that right, at least within 160 kilometres of the
settlement in which they reside. However, additional litigation
will be needed to determine whether non-settlement Métis
enjoy the same rights. Dion Lizotte was charged with hunting without a licence after he
shot a large bull moose in September 2007 about 70 kilometres south
of Paddle Prairie where he lives. Although Lizotte produced a card
that identified him as a member of the Paddle Prairie Métis
Settlement, provincial wildlife officers demanded genealogical
records that would substantiate his ancestry back to the late
1800s. Judge Brian R. Hougestol disagreed. "The Crown wants to
create a parallel world of unnamed bureaucrats to analyze
Métis genealogical records and second-guess the work of the
Settlements," Hougestol wrote in his judgment released
September 29, 2009. "This is inconsistent with the
[Métis Settlement] Act, and with common
sense." He concluded that "the Crown's position in
this case is inconsistent with the Alberta government's
historical approach to the Métis people." Hougestol declined to rule on the validity of a provincial
policy, drafted in 2007 by Alberta Sustainable Resources
Development (SRD), which says Métis only have a right to
exercise their hunting rights within 160 kilometres of the
settlement in which they live. The interim agreement, previously in
place, allowed them to hunt or fish on any Crown land in the
province or any private land so long as they had received the
owner's permission. However, the ruling does not address the right to hunt and fish
for any Métis who does not hold a valid settlement card.
While over 80,000 Métis reside in the province, just 9,000
are listed on the settlement rolls. The Métis Nation is
currently defending two other illegal hunting cases in southern
Alberta in an effort to win the right for all Métis to hunt
and fish throughout the province. A number of similar cases are
still outstanding. Gerald Cunningham, president of the Métis Settlements
General Council, says the Lizotte decision affirms two
important points. First, Métis settlement members under
Alberta law are automatically Métis under the relevant
aspects of the "Powley" case (in which the
Supreme Court of Canada ruled that Métis have a
constitutional right to hunt, fish and gather for sustenance).
Secondly, the case ensures Métis are able to hunt off
settlement, at least within a 160 km radius. The Supreme Court of British Columbia continues to clarify the
Crown's duty to consult, but says such consultation must be
balanced against other statutory requirements. In a judgment
released September 17, 2009 (Nlaka'pamux Nation Tribal
Council v. Griffin, 2009 BCSC 1275), Justice Sewell ruled that
the province's Environmental Assessment Office (EAO) had
initiated a consultation process that, in terms of both scope and
content, "cannot ... be said to be unreasonable". In a
complex case that involved overlapping claims, historical
infringements, and dissention among First Nations parties, the
Court complimented the EAO in accommodating the conflicting views
of the tribal council and one of its member bands. However, the
Court said it was still too early in the process to determine
whether the EAO will, in fact, adequately discharge its duty to
consult and accommodate if appropriate. Belkorp Environmental Services Inc. and the Village of Cache
Creek had proposed to extend a municipal landfill site on lands
northeast of Vancouver that were within, or close to, the asserted
traditional territory of the Nlaka'pamux Nation. The EAO had
issued an order prescribing consultation with the Ashcroft and
Bonaparte Indian bands, impact and benefit sharing agreements, and
involvement of First Nations in all phases of the EA; however, the
order excluded Nlaka'pamux Nation Tribal Council (NNTC), a
council comprised of certain First Nations communities including
the Ashcroft band. Although the Ashcroft band supported the
project, the NNTC did not and had also expressed long-standing
opposition to the original landfill operation and its access
corridors. NNTC petitioned the Court to quash the initial
consultation order issued by the EAO and to declare that the EAO
Director had "failed to comply with his constitutional and
legal duty to consult with the NNTC in good faith". The Court concluded that "the government acted
appropriately in this case in making a decision to implement
separate consultation protocols with the Ashcroft Band and the
NNTC. I can see no objection in principle to requiring the
proponents to consult with a specific Band if the government also
undertakes appropriate consultation with the First Nation. That
must be particularly so when there is a clear divergence of opinion
between the putative representative of the Nation and the
representatives of the Band." The Court also noted that the government has a statutory duty to
undertake the environmental review in a thorough, effective and
expeditious manner. This duty must be balanced against its
obligation to consult. "It is to be expected that this
balancing will require a flexible approach by Government to adapt
to the particular circumstances of each case," the Court
advised. In dismissing the claims set out in the petition, the court
determined that it was appropriate to involve the bands in the
assessment of the on-the-ground impacts of the proposal. Given the
broader nature of the concerns raised by the NNTC, the only truly
effective way to accommodate them was through
government-togovernment negotiations. The landfill proponents would
have no useful role to play in such talks. The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Edited by John Willms
W+SEL expands Aboriginal law practice
Cherie Brant to our Aboriginal and
Energy Law Practice.Contents
Concerns over Aboriginal consultation and dispute resolution
provisions ignored in final reading of Mining Act
Ontario's proposed Far North Act faces hostile
reception
Ontario supports Aboriginal access to green energy boom
(¢/kWh)
gas
adder
adder
Six Nations bids for 'Green Hub' designation
Alberta Court rules membership card proof of Métis
status
B.C. Court supports EA office's approach to
consultation
ARTICLE
19 November 2009
Environment, Energy & Resources Law Special Report: Aboriginal Law October 2009
Willms & Shier Environmental Lawyers LLP
Contributor
Willms & Shier Environmental Lawyers LLP www.willmsshier.com is Canada’s recognized leading environmental law firm, delivering a full range of environmental, Indigenous and energy law services. For 40 years, our clients have benefitted from our innovative, practical solutions and extensive knowledge of environmental, Indigenous, and energy and natural resource issues. With 19 highly specialized lawyers, we are the largest private sector environmental law practice in Canada. Seven of our lawyers are Environmental Law Specialists, certified by the Law Society of Ontario. Willms & Shier has offices in Toronto, Ottawa, Calgary and Yellowknife. Our lawyers are called to the Bar in Alberta, British Columbia, New Brunswick, Nunavut, the Northwest Territories, and Ontario.
When Ontario unveiled its proposed revisions to the Mining Act on April 30, 2009, they purportedly had already won the widespread support of industry stakeholders, environmentalists and Aboriginal groups.