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PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Heather Gardiner CaseLaw Editor . . . . . Adela Rodriguez Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. March 28, 2011 • Law TiMes Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter No more excuses on climate change week. O nce again, the federal govern- ment dropped the ball on cli- mate change in its budget last While the spending document likely won't become reality given the opposi- tion's reaction, it nevertheless gave further hints at whether the government intends to take aggressive action on climate change any time soon. As Finance Minister Jim Flaherty hinted, it probably won't. Th e government did allocate money for home retrofi ts to help Canadians be- come more effi cient in their energy use. Th ere was also money for regulations to tackle global warming, but we have yet to see concrete details. As noted on page 10 this week, the National Round Table on the Environ- ment and the Economy has called on the government to get the ball rolling on ad- dressing climate change. A recent report on the issue calls for a "transitional policy option" consisting of four components: contingent carbon pricing that would es- tablish a Canadian limit at no more than $30 per tonne of carbon dioxide equiva- lent above the U.S. price; a national cap- and-trade system that includes auctioned permits and revenue recycling to cap emissions and deal with concerns from specifi c regions and industries; limited international permits and domestic off - sets that would aim to keep carbon prices lower for Canadian companies; and a fund set up to spur investment in tech- nologies designed to reduce emissions. Th e issue is that the longer we wait to take action, the harder it will be to do so in the end and, of course, we really have no other option. But while the federal govern- ment faces very real political obstacles to addressing the issue, Macleod Dixon LLP partner Lisa DeMarco makes the very rea- sonable suggestion that it might be more feasible for it to take on the role of co-ordi- nating the various provincial eff orts under- way. Th at's certainly a logical way of deal- ing with the impasse but it unfortunately could result in inequality unless there's a way of setting a common national price for carbon despite a patchwork of provin- cial systems across the country. Alberta, for example, would have an incentive to take less aggressive actions despite the early lead it has had in being one of the few prov- inces to enact regulations for greenhouse gas emissions. In the end, then, we shouldn't be giving governments any more excuses for inaction. Th e federal government needs to show a willingness to put national regulations in place soon. In the meantime, Ontario and the other provinces that have joined the Western Climate Initiative need to show faster progress in getting the promised cap-and-trade system up and running. — Glenn Kauth may adversely aff ect lands sub- ject to the claims of Aboriginal Peoples, to fi rst consult with them and then reasonably accommo- date their legitimate concerns. Th e duty to consult arises I when the Crown has real or con- structive knowledge of potential aboriginal rights or title and is proposing some course of ac- tion that might adversely aff ect them. Th ese claims need only be potential, not certain, but they're quite varied in nature, including, without limitation, traditional rights to use land, interests in burial grounds and other cultural sites, treaty rights, land claim agreements, unresolved land claims, and reserves. As more projects involving lands subject to aboriginal claims come about in Canada, there are correspondingly more obligations to consult with First Nations. A couple of recent Supreme Court of Canada cases have further clarifi ed the duty to consult. In my February column, I described how the Supreme Court of Can- ada, in Rio Tinto Alcan Inc. v. Car- rier Sekani Tribal Council, ana- lyzed the duty in the context of Little Salmon offers added judicial guidance on duty to consult The n Canada, the Crown and all of its agencies have a duty, when making decisions that non-treaty First Nations. In Beck- man v. Little Salmon/Carmacks First Nation, released just three weeks after Rio Tinto Alcan, the top court again analyzed the duty to consult, this time in the con- text of existing aboriginal treaties. According to the case, the Little Salmon/Carmacks First Nation had fi nally reached a binding treaty with the Crown in right of both Canada and the Yukon in 1997 after nearly 20 years of negotiations. Th at treaty expressly provided for a notice and consultation protocol. In ex- change for the treaty rights, the Little Salmon/Carmacks First Nation surrendered its aboriginal title claims, although it main- tained rights over the surrendered lands until the Crown re-granted them to other owners. When the Crown eventually reissued a pat- ent over a small part of the for- merly disputed but now volun- tarily surrendered lands, the Little Salmon/Carmacks First Nation alleged the government should have fi rst consulted with and ac- commodated it before so doing because the re-grant to a local farmer would prejudice hunting, trapping, and fi shing privileges. As in Rio Tinto Alcan, the top court was unanimous in fi nding Dirt By Jeffrey W. Lem that the Crown had upheld its duty to consult. But unlike in the earlier case, it seemed divided as to the ratio decidendi, so much so that the justices issued two separate reasons. Th e justices in the majority concurred with one another in fi nding that the duty to consult exists even if there's a comprehensive treaty governing the rights and remedies of the aff ected First Nations. Th ey con- cluded that the duty to consult is constitutionally entrenched and can't be subject to contracting out via treaty. Th ey then noted, how- ever, that on the facts, compli- ance with the notice and hearing protocols contemplated in the treaty fully discharged the com- mon law duty to consult. Justices Louis LeBel and Marie Deschamps concurred with each other in separately issued reasons. According to the minority of the justices, the scope of the duty to consult could, in fact, be con- tractually established by treaty. www.lawtimesnews.com In fairness, nowhere in their rea- sons do they actually conclude that the duty to consult could be contracted out of completely via treaty. But what they do say is that any consultation process contained in a valid and compre- hensive treaty would supersede the homologous common law duty that might have applied without it. Either way, the Crown didn't fail in its duty to consult in Little Salmon/Carmacks. Annie Th uan, an aboriginal law practitioner with Rueter Scar- gall Bennett LLP who advised the British Columbia government in treaty negotiations, explains that "where there was uncertainty as to the applicability of the duty to consult in the modern treaty con- text, the Supreme Court of Can- ada has clarifi ed that the honour of the Crown and the duty to consult exist independent of the treaty." She notes, however, that "the scope of the duty is impacted by the treaty, which may work to narrow the scope. As the Supreme Court of Canada found in the case of Little Salmon/Carmacks, the duty that was owed fell on the lower end of the spectrum." Whether or not Little Salmon/ Carmacks expands the applic- ability of the duty to consult and accommodate is a matter of per- spective. Th e case certainly sur- prised some lawyers by extending the duty into the realm of mod- ern treaties notwithstanding that consultation provisions may al- ready be in them. Th at said, the case seems to confi rm the belief that comprehensive consultation and accommodation protocols in modern treaties might constitute a ready proxy for the constitu- tional duty. But according to Sarah Powell of Davies Ward Phillips & Vine- berg LLP, it's diffi cult to extrapo- late a clear judicial direction from just these two cases even if they're Supreme Court decisions. But Powell says what's abundantly clear is that "the duty to consult and accommodate is becom- ing a key component of any P3 infrastructure, alternative energy, mining or real estate deal taking place anywhere on or near lands aff ected by or subject to aborig- inal claims." Th e cases, therefore, add yet another complexity to the prac- tice of real estate law. Jeff rey W. Lem is a partner in the real estate group at Davies Ward Phillips & Vineberg LLP. His e-mail address is jlem@dwpv.com.

• Cover
• Evidence Tossed
• Duty To Consult
• Focus On Energy Law/Environmental Law